The Senate’s “Neutron Option”?

Roll Call reports this morning:

 The Senate voted, 52-48, to effectively change the rules by rejecting the opinion of the presiding officer that a supermajority is required to limit debate, or invoke cloture, on executive branch nominees and those for seats on federal courts short of the Supreme Court.

At least three Democrats — Carl Levin of Michigan, Joe Manchin III of West Virginia, and Mark Pryor of Arkansas — voted to keep the rules unchanged.

The move came after Majority Leader Harry Reid, D-Nev., raised a point of order that only a majority of senators were required to break filibusters of such nominees. Presiding over the Senate as president pro tem, Judiciary Chairman Patrick J. Leahy of Vermont issued a ruling in line with past precedent, saying that 60 votes were required. Leahy personally supported making the change.

Voting against Leahy’s ruling has the effect of changing the rules to require only a simple majority for most nominations.

There are two interesting aspects of this action. First, Senator Leahy apparently voted to reverse his own ruling, which is puzzling to say the least. Either his initial ruling was correct, or it was not. One would have to infer that he believes his ruling was correct under the existing rules of the Senate, but that the Senate could choose to change the rules by reversing it. But I am not aware of any legal theory that would justify that approach.

Second, the new rule evidently is intended to apply solely to executive branch nominations and to non-Supreme Court judicial nominations. So the filibuster apparently survives only as to one particular type of nomination. Call it the “neutron option.” (If you are too young to get this reference, google it).

Again, however, I am not aware of any legal or constitutional theory that would justify distinguishing between Supreme Court and other nominations. By this I don’t mean I am unaware of any good legal theory. As we have discussed before, there are a number of legal arguments that have been invoked to support the nuclear option, including some that I find quite implausible. However, I am not aware of any argument, plausible or implausible, that supports what the Senate apparently did today.



9 Replies to “The Senate’s “Neutron Option”?”

  1. Well, I am not a U.S. lawyer, but a European one, so I have no expertise on “stare decisis” doctrine. But I guess that the chair of the body, when he made his first decision, probably felt compelled to follow established precedent in applying the parliamentary rule. Now, when the decision was appealed, he -as a member of the full assembly- felt free to desagree with previous precedent and voted to overrule it.

    In continental Europe something like this would probably end up being litigated before the Constitutional Court. I guess in the U.S. the Supreme Court gives broad deference to the houses of Congress to interpret and apply their own rules.

  2. I see what you mean. Under this conception, the presiding officer would consider himself to be like a lower court, bound to follow the precedents of the higher court (the body as a whole), but the higher court would remain free to overrule its own precedents. I think you are right that Leahy would probably explain his actions in something like that way.

  3. Is there “no basis for distinguishing between Supreme Court nominations and other nominations”?

    Is there really no basis for such a distinction. Let’s take a look. The first basis is that there are vacancies in the lower federal courts, while there are no vacancies in the Supreme Court and there has been no problem with long vacancies on that Court. There are three long-standing vacancies on the D.C. Circuit. This suggest at least one factual basis for the distinction.

    Second, a filibuster of a Supreme Court nominees has not been used at least since 1968, when Senate opposition to Abe Fortas cause him to withdraw his nomination and leave the Court. (There is a tiny historical debate whether it was a real filibuster, but we will assume for now that it was). Numerous nominees for the lower courts have just been filibustered, including three for the D.C. Circuit. This is another factual distinction.

    Third, the Constitution is clear and unambiguous: “Each House may determine the Rules of its Proceedings….” Most would agree that this is a plenary grant of authority, but there are limitations. The Senate cannot use its rulemaking power to change the majority vote requirement, to originate a bill raising revenue, or to adjourn without House consent for more than three days. It cannot use its rules to bypass the Presentation Clause with a congressional veto (Chadha) or to bypass the two-thirds requirement for expelling a Member by refusing to seat him (Powell). This is a power committed by the text of the Constitution to the discretion of one of the three branches of the federal government. Nothing in the Constitution limits the authority of the Senate to distinguish between the Supreme Court and other judicial nominations.

    Fourth, under the express terms of the Constitution, the Supreme Court is in fact different from the lower federal courts. In mandatory language, the “judicial power of the United States, shall be vested in one Supreme Court….” By contrast, it may be vested “in such inferior Courts as the Congress may from time to time ordain and establish.” The Supreme Court exists because of the Constitution, while the lower courts are the creatures of Congress. Congress has complete discretion over the jurisdiction of the lower courts, while Supreme Court jurisdiction is set forth in Article III These are a sound bases for distinctions.

    Finally, the Supreme Court is different because it is supreme. The lower courts are bound by precedent from higher courts, but the Supreme Court can reverse its own precedents. Its constitutional holding can only be reversed by its own later decision or by constitutional amendment. Its Justices are far more powerful than any lower federal judges.

    1. Wow. There’s a lot of argument here. Now let’s see if there’s a pony. First, there’s no Supreme Court vacanacy until there is one. And then that distinction goes “poof.” The fact that numerous lower court nominees were filibustered more lately doesn’t create a doctrinally justifiable difference. Third, the Court may SAY its only creating a rule that applies to the cases Harry Reid cares about today, but what logical basis would one offer is a future Senate wanted to move the bar to include Supreme Court Justices? Or even legislation? We’ve now decided that the Senate rules mean whatever 51 Members of the Senate say they mean. Fourth, the Supreme Court’s jurisdiction is set in the Constitution, but not its membership. If we had a vacancy, Congress could simply eliminate the seat. If it can do that, it can surely change the procedural rules by which vacancies are confirmed. Fifth, well, that’s a difference without distinction.

      If the Republicans gained the Senate in 2014 and the White House in 2016, and repeal the ACA in 2017, you can thank Senator Leahy and Reid. They want a Senate that GETS THINGS DONE, i.e. The House of Representatives.

      Now they’ve got it.

  4. Vince- first, you are to be congratulated because you have given more thought to this question than the Senate did. At first blush, it seems to me that the distinctions you draw between Supreme Court and other judicial nominations would, if anything, justify the opposite of what the Senate did—prohibiting the filibuster as to Supreme Court nominees but allowing it as to others.

    Nonetheless, the Senate certainly may, as exercise of its rule-making power, provide for filibusters only as to Supreme Court nominees. But my point yesterday was that no one had made an argument to support the proposition that the filibuster is unconstitutional as to non-Supreme Court nominees only. I am not sure if you consider your comment to be such an argument. But whether you do or not, I don’t doubt that someone could dream up such an argument for this or virtually any other proposition. As of yesterday, though, no one had.

  5. As a point of clarity, I do not agree with the proposition “that the filibuster is unconstitutional as to non-Supreme Court nominees only.”

  6. As I understand the issue, the change in the rule has been introduced as an interpretive ruling on the meaning of a parliamentary rule (Senate Rule XXII, if I am not mistaken).

    Rule XXII establishes a three-fifths majority to close the debate on any “measure, motion, or other matter pending before the Senate”.

    Having read this, I fully agree with Mr Stern that there is no reasonable interpretation “that would justify distinguishing between Supreme Court and other nominations”. Or, for that matter, between nominations and any other business pending before the Senate. The new interpretation is incorrect on its face.

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