The New Filibuster Rule

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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.