Ending the Filibuster

On November 21, Senate Majority Leader Harry Reid followed through on threats to use the so-called nuclear option to overcome Republican opposition to President Barack Obama’s nominees to executive and judicial positions. Fifty-two Senate Democrats and independents voted to repeal the traditional filibuster powers of the Senate minority party for executive and judicial nominees. Reid’s measure ends the requirement that 60 senators vote for Senate approval of nominees, reducing that number to a mere 51, or a simple majority of the Senate’s members.


By Andrew Thomas | December 17, 2013

The Senate’s repeal of its venerable filibuster procedures governing executive and judicial nominees is the latest eruption in a decades-long struggle between the two parties, one that increasingly mirrors the fierce ideological differences between them. Indeed, in recent years many American voters have tended to dig in along philosophical lines as they select their party affiliation. People of like minds often have chosen sides in the nation’s political and cultural disputes by signing up for the political party that most matches their belief systems, this being a reasonable way to react to an age of bitter arguments over key principles of government and society. Those preferring not to make this choice, or to keep their options open for other reasons, have eschewed both parties and become independents.

Given this political chasm, bitter partisan disputes in Washington inevitably have mirrored the ideological divide in the nation—and are on raw display in Senate confirmation fights. Battles over Senate confirmation of presidential appointees have become a major flashpoint, with both parties using the filibuster to block nominees of the other party they deem unacceptable. So when the Obama administration and Senate Democrats acted last month to repeal the filibuster to begin pushing through key Obama appointees, the event marked not only a profound shift in the balance of power in Washington. It was also a seismic event in the broader struggle over what kind of nation America will be.

On November 21, Senate Majority Leader Harry Reid followed through on threats to use the so-called nuclear option to overcome Republican opposition to President Barack Obama’s nominees to executive and judicial positions. Fifty-two Senate Democrats and independents voted to repeal the traditional filibuster powers of the Senate minority party for executive and judicial nominees. Reid’s measure ends the requirement that 60 senators vote for Senate approval of nominees, reducing that number to a mere 51, or a simple majority of the Senate’s members.

Though the change does not currently apply to Supreme Court nominees, there is nothing to prevent the same coalition that ended the filibuster for other judicial nominees from extending it to high court nominees at a later date. Indeed, the road map now has been created and endorsed. Triggering the “nuclear option,” according to Reid and Senate Democrats, was Republican opposition to Obama’s three most recent nominees to the U.S. Court of Appeals for the District of Columbia Circuit. The court has great power due to its wide jurisdiction over federal agencies and regulations emanating from the nation’s capital. These rules affect issues ranging from health care to the environment.

Indeed, after stripping Republicans of their filibuster rights, Senate Democrats wasted little time in putting their new power to use. On December 10, the Senate confirmed the first of Obama’s stalled judicial nominees, approving by a vote of 56-38 the nomination of Patricia Millett for a seat on the U.S. Circuit Court of Appeals for the District of Columbia. Expected to follow are confirmations of other key Obama appointees, including Jeh Johnson as secretary of the Department of Homeland Security and Janet Yellen as head of the Federal Reserve.

The rules change that ended the traditional filibuster gained the nickname “nuclear option” because it blows up the traditional rules designed to safeguard the rights of the minority party and their constituents in the Senate. Predictably, liberal leaders praised the change as necessary, while conservatives blasted it as destructive of minority rights in Congress. What was largely lost was the historic nature of the shift in power it has brought about.

The filibuster is a long-standing American institution that has bedeviled the Senate majority party and thwarted federal legislation for most of the nation’s history. The term filibuster (from a Dutch word meaning “pirate”) gained currency in the 1850s, when observers began to use it to describe holding the Senate floor to block the passage of a bill. Originally, members of the House of Representatives also held the filibuster power. As the number of congressmen grew, House leaders amended the rules of the chamber to limit debate. These restrictions were not passed in the Senate. Members of that chamber concluded unlimited debate should be afforded its members, based on the principle that any senator should have the right to speak as long as necessary on any issue.

Famous figures in American history have used the procedure or suffered at its effective display. In the nineteenth century, the filibuster was used to block a bank bill promoted by Kentucky Senator Henry Clay. Missouri Senator Thomas Hart Benton upbraided Clay when he threatened to change Senate rules to allow the majority to close the debate. In 1917, at the urging of President Woodrow Wilson, senators adopted Rule 22, which allowed the Senate to end a debate with a two-thirds majority vote. This mechanism became known as “cloture.”

In recent decades, the rise of greater partisan strife in Washington reinforced the centrality of the filibuster in blocking nominees to executive and judicial offices. In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or from 67 to 60 of the current 100 senators. Senate leaders of both parties have threatened the “nuclear option” for years. Only now has that option become law, at a time when the nation, according to polls, has grown in its distrust of the president and the party holding the White House.

The practical result of the change is obvious and substantial. The “nuclear option” has divested the minority party in the Senate of the power to block the appointments of the party that controls the White House and the Senate simultaneously. This in turn greatly affects minority rights in that chamber of government and, by extension, voters who are members of their party.

Many of the nation’s leading political theorists, since the time of the founding, have written about and validated the importance of minority rights in American politics. They include James Madison in the Federalist Papers and Alexis de Tocqueville in Democracy in America. The concerns they noted now have become reality in the nation’s capital. The full effects will not be known for years or even decades.

But sauce for the goose can be sauce for the gander as well. Ending the filibuster for nominations means that a Senate Republican majority, should it come to pass in the next election cycle, can end the filibuster for legislation as well. That would allow a Republican majority in the Senate to send legislation to President Obama he does not like and would prefer not to address. As Republican electoral prospects continue to improve for 2014, this fact could not have been lost on Senate Democrats and the Obama administration as they assessed whether to abolish the filibuster. That they decided to push the nuclear button anyhow says much about their desire to reshape the country, while they still hold the power they currently enjoy.


Andrew Thomas is a graduate of the University of Missouri and Harvard Law School. Twice elected as Maricopa County Attorney, the district attorney for greater Phoenix, Arizona, Thomas served a county of four million residents and ran one of the largest prosecutor’s offices in the nation. He established a national reputation for fighting violent crime, identity theft, drug abuse and illegal immigration. He is the author of four books, including Clarence Thomas: A Biography and The People v. Harvard Law: How America’s Oldest Law School Turned Its Back on Free Speech. Mr. Thomas is also a contributor to SFPPR News & Analysis.