Democrats’ closing of Senate session offers taste of tactics for battling Supreme Court nomination

By invoking a little known procedural rule to force a closed session of the Senate on Tuesday, Democratic Minority Leader Harry Reid put Republicans on notice that Democrats are prepared to use similar tactics, such as the filibuster, in pending Supreme Court nomination battles, suggests Steven Smith, an expert on congressional politics at Washington University in St. Louis.

“Senator Harry Reid’s move to close the Senate session on Tuesday was a shot across the bow,” Smith said.”Democrats now have reason to fear that the promised confrontation over judicial filibusters is weeks away and might be unavoidable.Senator Reid gave us a sense of the procedural options that are in the hands of the Senate minority if the Republican leadership successfully employs the nuclear option.”

Steven Smith
Steven Smith

Smith is director of the Weidenbaum Center on the Economy, Government and Public Policy and the Kate M. Gregg Professor of Social Sciences in Arts & Sciences at Washington University. He is the author of five books on congressional politics, including Politics or Principle? Filibustering in the United States Senate (Brookings, 1977), which he co-authored with Sarah A. Binder, a senior fellow at the Brookings Institution.

Republicans have threatened to ban judicial filibusters by majority vote, a procedural move dubbed the “nuclear option” since it would invite massive retaliation by Democrats.

Under the nuclear option, Republicans would seek to change the Senate’s rules during floor debate over a court nominee. In one scenario, Republican leadership would raise a point of order seeking a ruling from the presiding officer in the chair — probably Vice President Cheney, the president of the Senate — stating that filibusters of nominations to the federal bench are unconstitutional.

In a recent analysis of filibuster use in the U.S. Senate, Smith and Binder concluded that filibusters of judicial nominations are plainly constitutional, and come on the heels of years of Republican success in blocking votes on President Clinton’s judicial nominees. Any move by the Republicans to ban the filibuster may have unintended consequences, they warn, since there’s no guarantee the ban will be restricted to debates over judicial nominations.

While Republicans theoretically have the power to deploy the nuclear option, Smith says the fallout from such a move could be drastic. If Republicans succeed in their efforts — effectively abolishing the traditional right of the minority to force unlimited debate, Democrats are likely to escalate the battle, using other tactics to grind the legislative process to a halt. If Republicans are blamed for the gridlock, it could spur a huge backlash in the next election cycle.

Smith, an expert on parliamentary procedure and rulemaking in congress, suggests a more practical and feasible solution would be to consider changes in the Senate’s Rule 22, under which 60 votes are required to cut off debate on a pending nomination and to bring the Senate to a vote on confirmations. He says the rule should be changed so that over a two-week period, the number of votes required for cloture (the end of legislative discussion) would fall from 60 to 57 to 54 and finally to 51. In this way, the Senate would have more than enough time to debate and educate the public so a vote could take place.