Why the Democrats Took the Nuclear Option in Congress

Thursday's vote by Senate Democrats to eliminate use of the filibuster to block most presidential nominees may signal that the Senate is moving toward becoming a more majority-ruled chamber such as the U.S. House of Representatives, said a Duke political scientist.

Senate Leader Harry Reid's push for the so-called "nuclear option," in response to entrenched Republican opposition, means that debate on presidential judicial nominations -- except those to the Supreme Court -- can be terminated by a simple majority vote of the chamber, rather than the 60 votes that had previously been required. 

"What we witnessed yesterday may only be an indication of a broader reality that goes beyond nomination fights," said Georg Vanberg, a Duke political science professor whose research focuses on political institutions. "The fact that it no longer makes sense for the majority to abide by an arrangement that limited its own powers in this area may indicate that norms of restraint -- of which the filibuster in nominations was just one visible example -- may be breaking down more generally in the Senate.

"The Senate may be on its way to becoming a less consensual and more majority-dominated chamber in general, and thus come to resemble the House of Representatives much more."

Thursday's move might end the current gridlock on judicial nominations but could also add more fuel to partisanship in Washington, D.C., said David Rohde, a professor of political science who specializes in American politics. Rohde said gridlock is not going away.

One reason is the change does not apply to legislation.

"Gridlock on matters like appropriations, climate change, financial regulation or immigration will not be mitigated by Thursday's developments," said Rohde.

"This ends the minority party's ability to prevent the filling of such posts merely by continuing to talk, and it marks a historic alteration of the way the Senate does business," added Rohde, the Ernestine Friedl Professor of Political Science and director of the Political Institutions and Public Choice Program.

There's been some speculation that the Senate might eventually apply the simple majority vote to Supreme Court nominations. Law professor Christopher Schroeder doesn't think that scenario is likely.

"The Supreme Courts remains the sole court where the public has a strong expectation that a nominee will not be blocked from getting an up or down vote," said Schroeder, a professor of law and public policy who supervised the evaluation of President Obama’s nominees to the federal judiciary as assistant attorney general in the Office of Legal Policy at the Justice Department. 

"For this reason it is not likely there will be a great call to eliminate the filibuster from the Supreme Court, because a filibuster of a nominee would be highly unpopular and therefore difficult to sustain."

Historically, the option to abolish the supermajority requirement for moving forward with nominations has always existed, Vanberg said.

For many years, majority parties have chosen to respect a cooperative arrangement in which they voluntarily agreed not to exercise their full power as a majority, and to provide the minority party with the power to filibuster, despite the fact that they could have chosen at any time not to do so, he said.

"They did this because each side expected that the benefits of the filibuster when in the minority would outweigh the costs of allowing the filibuster when in the majority," he said.

Why make this change now?

For the Democrats, the costs of respecting the arrangement have increased substantially over the past few years, Vanberg said. Republicans have aggressively used the filibuster to hold up nominations, thus making the rule much more onerous for the majority than it used to be, he said.

If Democrats believe they have a good chance of maintaining control of the Senate for the foreseeable future, respecting the filibuster makes less sense, Vanberg added.

"With a House majority that is clearly aligned against the president, that has closed opportunities for policy change through legislation and rule-making by executive agencies has become an increasingly important tool for seeking policy change for Democrats and the president.

"As a result," Vanberg said, "the compromises and delays in appointments produced by the filibuster have become increasingly costly."