How to make the Senate a nuclear-free zone
(Editor’s note: This post originally appeared in Legislative Procedure on September 4, 2018.)
Amy Klobuchar, D-Minn., regrets going nuclear. Democrats used the controversial maneuver in 2013 to lower unilaterally the threshold for invoking cloture on most nominations from three-fifths of senators to a “majority-vote.” While the Democrats’ maneuver exempted Supreme Court nominees, their gambit made it easier for Republicans to justify going nuclear themselves in 2017 to eliminate the minority’s ability to filibuster SCOTUS nominations as well. Hence Klobuchar’s regret. The Senate Judiciary Committee, on which Klobuchar sits, begins its confirmation hearings for Brett Kavanaugh today. And Democrats have little ability to block his eventual confirmation thanks, in part, to Klobuchar’s decision to go nuclear five years ago.
Klobuchar also said that she would support reinstating the judicial filibuster next year if Democrats are in the majority after November’s elections.
Senators have four ways to bring back the judicial filibuster.
- Reverse the ruling of the Chair on an appeal that cloture can be invoked on a nomination by a simple-majority
- Sustain the ruling of the Chair that Rule XXII stipulates that cloture can only be invoked on a nomination by a three-fifths vote
- Pass a simple resolution as a standalone measure that reverses the precedents established by the nuclear option and restores Rule XXII
- Pass a simple resolution as a provision in a larger measure that reverses the precedents established by the nuclear option and restores Rule XXII
If structured correctly, each of the options above would have the effect of reversing the precedents established by the nuclear option in 2013 and 2017. Consequently, they would all bring Senate practice back into compliance with the institution’s Standing Rules.