Changing Senate Rules or Procedures: The “Constitutional” or “Nuclear” Option Page: 5 of 14
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CRS-2
Eventually such a plan might even result in changes in Senate rules, while
circumventing the procedures prescribed by Senate rules for changing the rules.
Some have recently referred to such actions as the "nuclear option" for bringing
about change in Senate rules or practice, referring to the possible problems that could
result in the Senate from the use of such tactics. No set definition exists for the term
"nuclear option"; indeed, this term has been used to refer to many kinds of possible
proceedings. One set of possibilities, however, involves appealing to constitutional
requirements as an authority superior to that of the Senate's own rules, and
supporters of such an approach have accordingly preferred to describe such an
approach as a "constitutional option."1
Nominations and the Filibuster
Much of the discussion of the "nuclear" or "constitutional" option has involved
presidential nominations, particularly those for the federal judiciary. Fights over the
confirmation of judicial nominees are not a new phenomena, but the intensity and
frequency of the confrontations have increased in the last decade or so, which has led
some to question how the Senate considers such nominations.2 During the
Presidency of Bill Clinton and that of his successor, George W. Bush, groups in the
Senate have been able to block confirmation of nominations, either because the
nominee was never considered by the chamber (during the Clinton presidency) or by
use of the filibuster to prevent a final vote on some nominees (during the Bush
presidency).3
The levels of frustration became very intense in the 108th and 109th Congresses,
and the majority party publicly denounced its inability to end filibusters to secure
votes to confirm some federal judges.4 To that end, Majority Leader Bill Frist
announced that he was prepared to try and change the Senate's rules to make it easier
for a majority to overcome a filibuster of a judicial nominee. First, in the 108th
Congress, he introduced a resolution (S.Res. 138) that would have changed the
procedure for invoking cloture, the only way to end a filibuster, by imposing an ever-
decreasing threshold for successive votes to invoke cloture on a nomination, until it
could be achieved by a majority vote of the full Senate. The resolution was reported
out of the Senate Rules Committee, but not considered on the Senate floor. This has
1 See CRS Report RL3 2843, 'Entrenchment' of Senate Procedure and the 'Nuclear Option'
for Change: Possible Proceedings and Their Implications, by Richard S. Beth.
2 Sheldon Goldman, "Assessing the Senate judicial confirmation process: The Index of
Obstruction and Delay," Judicature, March-April 2005, vol. 86, no. 5, pp. 251-257.
3 Ibid, and Keith Perine, "Fiercest Fight in Partisan War May Be Over Supreme Court," CQ
Weekly, Jan. 10, 2005, p. 58.
4 Julie Hirschfeld Davis, "GOP acts to break deadlock on judges; Senate rules panel backs
51 votes to halt debate, force confirmation vote," The Baltimore Sun, June 25, 2003, p. Al;
Sarita Chourney, "Senate GOP retreats from all-night filibuster plans," The Hill, Sept. 9,
2003, p. 1.
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Palmer, Betsy. Changing Senate Rules or Procedures: The “Constitutional” or “Nuclear” Option, report, November 1, 2005; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc813015/m1/5/: accessed July 17, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.