The New Filibuster Rule

The Democrats have passed a new rule that prevents the filibuster from being used to block confirmation votes for all presidential nominations, except Supreme Court Justices. In passing this rule, the Democrats used the Constitution or Nuclear Option to change the rules.  The Senate rules require 67 votes to end a filibuster of a change in the Senate rules, which would have prevented the Democrats from changing the filibuster rule.  But many people, including yours truly, argue that this Senate rule cannot constitutionally prevent a majority of Senators from changing the filibuster rule. Hence, the name the Constitutional Option.

But this maneuver has also been termed the Nuclear Option for another reason: its use has been deemed to be like a nuclear attack, which will lead to incredible retaliation. When it has been used in the past, it has almost always led to a compromise shortly afterward to avoid the bitter relations that would have otherwise resulted. So I would not be surprised to see some kind of compromise.

Whether or not a compromise occurs, however, this change is likely to have one enduring consequence. It will be used when the Republicans control the Presidency and the Senate, and the Democrats seek to filibuster Republican nominees. People may remember that the practice of filibustering lower court judicial nominees was established by the Democrats in the early years of the Bush Administration. The new rule, unless changed, will prevent them from doing so again.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. djf says

    “It will be used when the Republicans control the Presidency and the Senate, and the Democrats seek to filibuster Republican nominees.”

    If the Republicans ever control the presidency and the senate again. Which does not seem likely. Sadly.

  2. Ken Masugi says

    Vapid Republican rhetoric, which focuses on the fairness of the “process,” led them to ignore the great substantive question of Progressive policy–and the need for conservatives to defeat it. The Republican approach is as dated in politics as debates about judicial activism in judicial matters. Rs should raise the founders’ views of democratic republican politics: Its prime task is to prevent tyranny or bad legislation; it is not to pass legislation (this purpose is Progressivism). Second, failing this principled view, Rs should tie this all to Obamacare. The DC Circuit is a key court for Obamacare. The President is (still) trying to rescue this disaster, this time by packing a court. Various commentators made the Senate rules change an attempt to distract from presidential embarassment over Obamacare. No, no, no–it is an attempt to secure Obamacare by the judiciary. That should be the R’s theme. now, in 2014, and in 2016.

  3. says

    I suspect this is only the beginning, not the end, of changes that will lead to a much different looking Senate, one that resembles the House. Logically, there is no reason under the Senate’s rules to restrict the fillibuster to a subset of nominees rather than all nominees or, in fact, all measures pending before the Senate. Repealing the ACA with 51 votes would, in fact, be a logical extension of this ruling. The fact that a ruling from the chair was made at all so inconsistent with the plain language of Senate rules and history raises the question of whether Senate procedure is anything other than what 51 members agree on at any one time.

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