The Infamous “Nuclear Option”

On Monday, October 26th, the U.S. Senate confirmed Amy Coney Barrett in a 52-48 deeply partisan split. With just 8 days until the election, the confirmation was the first in history where not a single vote to confirm came from the minority party. At this point, the confirmation process is over, but questions are still circulating over how such a partisan confirmation was even logistically possible. 

If you read my previous post, on the Supreme Court, then you know the Constitution doesn’t lay out exact directions on how the nomination or confirmation process should work. Specifically, it doesn’t mention how many votes are required, those protocols are decided by the Senate. Previously, the Senate had a supermajority rule when it came to votes on certain procedures such as impeachment, reversing a veto, changes to the Constitution, and ending a filibuster, but a lot has since changed. 

Jus FYI…A supermajority in the Senate means 3/5’s majority, or 60 votes. 

Filiwhat? Filiwho? Filibuster!

A filibuster is a tactic used by the Senate to delay a controversial topic from going to a vote, by hours or even days. In order to end a filibuster, 60 Senators need to vote to end the debate. After this, the topic can then be taken up as a vote. As a result of this rule, it has become common for the Senate to require a 60 vote minimum on many issues. If you don’t have the 60 votes to end the debate, you can’t put it to a vote, and as a result you can’t pass it. Changes to the filibuster rule is the main reason for the current rules when it comes to confirming a Supreme Court nominee. 

What is the Nuclear Option? 

Although the filibuster rule is still intact in some ways (such as legislative matters), something known as the “nuclear option” has been used to amend it when it came to certain types of Senatorial confirmations. In 2013, under the Obama administration and under the Senate Majority Rule of Harry Reid, the Democrats used the “nuclear option” to get rid of the 60-votes filibuster rule for cabinet appointments and for Federal Judicial appointments.

Cabinet appointees are those prospected to join the President’s cabinet such as Secretaries of Agriculture, Commerce, Defense, Education, Energy, Health and Human Services, Homeland Security, etc. These are the people that help the president run the various federal departments, they are the top bosses of those departments. 

Federal Judicial appointments are used to put Judges on the various Federal benches where cases are heard that involve the federal government, or cases which are appealed from State court. This could be the U.S. Court of Appeals, the U.S. District Courts, and so on. 

In invoking the nuclear option for these matters, the Democratic majority made it clear, however, they were leaving the 60-votes rule intact for Supreme Court nominations. 

Nuclear Option for the Supreme Court

In 2017, the Republican Majority held Senate changed the rules of the filibuster, removing the 60-vote rule, and allowing for a simple majority, for confirming Supreme Court nominees. Since then, it has only taken 51 votes to end debate and proceed to voting. As a result, 3 of the last Supreme Court Justices have been confirmed with a simple majority. But, as mentioned, Amy Coney Barrett’s confirmation will be the first time not a single vote to confirm will have come from the minority party. 

Below are the last 5 Supreme Court Justice confirmation votes:

  1. Amy Coney Barrett 52-48 [one Republican (majority rule) Senator voting no – zero Democrat Senators voting yes]
  2. Brett Kavanugh 50-48 [one Democrat (minority rule) Senator voting yes]
  3. Neil Gorscuh 54-45 [three Democrat (minority rule) Senators voting yes]
  4. Sonia Sotomayor 68-31 [nine Republican (minority rule) Senators voting yes]
  5. Elena Kagan 63-37 [5 Republican (minority rule) Senators voting yes, 1 Democrat (majority rule) voting no]

Seeing as the nuclear option has now been invoked, and 3 new Justices are the outcome, it doesn’t appear that it is going away anytime soon. Similarly, cabinet appointments and Judicial appointments to the Federal bench are being confirmed with a simple majority of 51+ votes. 

Although cabinet appointments aren’t lifetime, some Judicial appointments to the Federal bench, and ALL Supreme Court appointments are lifetime. This means that until the appointees retire, or pass away, those Judges and Justices will be there ruling on monumental cases. What does it say that recently these appointees have been, and will most likely continue to be, confirmed by deeply partisan lines? 

How does this relate to the topic of expanding the Supreme Court? Stay tuned. 




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