Skip Navigation

Why the Senate Went ‘Nuclear’ on Filibusters

Today’s vote to change the filibuster rules is not the result of momentary pique. It was a long time in coming. Based on her own experience, Victoria Bassetti shows how filibusters became part of every lawmaker’s daily tool kit.

November 21, 2013

With the Senate changing its rules today on approval of judicial nominees, it’s worth exploring how we arrived at this parliamentary version of the Trinity Test of the atom bomb in the New Mexico desert. Majority Leader Sen. Harry Reid deployed “the nuclear option,” using a simple majority to change Senate rules to block filibusters of presidential nominees, thereby allowing them to pass with 51 votes.

By allowing filibusters of judicial nominees, the effective threshold for approval was 60. That’s because it takes a three-fifths vote of the Senate to invoke cloture, which is the only way to end a filibuster.

On Monday, the Senate completed a cloture trifecta. It failed to stop the filibuster of the nomination of Robert Wilkins to the Court of Appeals for the District of Columbia Circuit. In the preceding 20 days, Republican Senators had filibustered Wilkins’ erstwhile colleagues on the court, Cornelia Pillard and Patricia Ann Millett. Three for three, the nominees were stopped.

Few Senate rules are better known to the American public. With its nuclear options, gangs of 14, linguistic origins in Dutch piracy, and Hollywood portrayals, the filibuster seems an exotic creature, more at home in a Harry Potter novel than the world’s greatest deliberative body.  

But today U.S. Senate is its home, and there it hulks, setting two American ideals — progress and minority rights — in conflict. All too often, it feels, one must suffer for the other.

The filibuster looms now as a fundamentally democracy distorting practice, effectively imposing a super-majority rule in the Senate, undoing the idea that in a democracy when something has majority support it wins.

The filibuster is governed by the terse provisions of Senate Rule XXII. But filibuster practice is not uniform and the Senate seems to have developed sets of folkways for its use in judicial nominations, executive branch nominations and legislative action.

With Monday’s vote, the Senate returned to the judicial nominations strand of the filibuster and aimed at the D.C. Circuit. The D.C. Circuit, often called the second highest court in the nation, is authorized 11 judges but currently only eight sit in its Pennsylvania Ave. courthouse. Since his re-election, President Barack Obama has sought to fill the vacant posts. And so the stage has been set for the latest showdown

Filibuster and cloture petition data is famously imprecise. Cloture can be filed without a filibuster actually taking place. A filibuster might be occurring without anyone knowing it. But a comprehensive Brennan Center study last year found that the amount of time spent on the Senate floor devoted to cloture votes had risen by 50 percent in the last three Congresses over any time since World War II.

The filibuster is simply always in the air in the Senate. Senators routinely put holds (i.e. threaten to filibuster) on bills and nominations. To a senator and his or her staff, the hold is as central to doing the job as having a mitt is to a baseball player. Life without it is simply inconceivable.

Allow me to give two examples from personal experience.

In the mid-1990s, I was the Minority Chief Counsel on the Senate Judiciary Committee’s subcommittee on Administrative Oversight and the Courts, which had jurisdiction over court administration. Sen. Dick Durbin of Illinois was my boss and the ranking member. At the time, we had nominated and passed out of committee several expectant judges to the Illinois district courts.

But Sen. Phil Gramm of Texas put a hold on them. He did so because the other senator from Illinois had a hold on a nominee pending for the Commodities Futures Trading Commission. Neither Gramm nor the other Illinois senator would budge on their cross holds and so our perfectly qualified nominees were in limbo, and had been for many months. Two filibusters were threatened. There was only one solution: another filibuster. So Durbin went to the floor and filibustered everything. Long story short, within a few days a deal was struck, within a few weeks the Illinois judges were confirmed, and Senate life continued.

A few years later, I was the Legislative Director for a North Carolina senator. Earlier in the year, a major hurricane had hit the state, and our office had been transformed into a non-stop assistance machine. As the legislative year drew to a close we were still short money on one of our major projects, which if memory serves was temporary housing for displaced Tar Heelers.

The Senate had about four hours of business left on the clock, and we were not getting what we needed. The only option was to gain leverage and force someone to pay attention to us. So I picked up the phone, called the Senate Cloak Room and put a hold on a small technical bill, which turned out to be the provision that would have authorized the government to pay is arrears to the U.N.. Within about 15 minutes, our phones were ringing off the hook. Within a few hours, the homeless victims of a hurricane had a housing commitment and the U.N. got its money.

So when does a common, essential practice become noxious, so noxious that almost a century of settled expectations have to be undone? The latest use of the filibuster against three nominees to the DC Circuit comes very close.

Data about the need for judgeships in particular circuits is pliable. As Sen.Orrin Hatch of Utah noted on the Senate floor Monday, “it takes only an agenda and a calculator to create a politically useful statistic,” right before he cited a string of statistics arguing that the D.C. Circuit doesn’t need the three additional judges because it has a relatively light caseload.

The debate this week over the need to fill three vacancies on the DC Circuit has not turned on whether the three nominees are qualified. Instead, it has turned on whether the caseload on the circuit warrants a full complement of judges and whether the ideological balance on the court will be undone if a Democratic president is allowed to appoint so many judges. (Full disclosure: One of the three vacancies was created when the judge I clerked for, appointed by President George H.W. Bush, took senior status).

These points of debate are well worn. Republican and Democratic senators actually seem to have just swapped talking points written the last time the issue arose in the mid-2000s, when Democrats argued that the court was underworked.

Neither party has clean hands in this debate. But one thing is clear. With regard to the administration of justice, in the last 20 years the filibuster has enabled a growing and dangerous politicization of the judicial nomination and confirmation process. Sometimes one has to go nuclear.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

Victoria Bassetti is a Brennan Center contributor. She is the author of “Electoral Dysfunction: A Survival Manual for American Voters,” published by The New Press in 2012.