The D.C. Circuit on the Nuclear Option

One additional tidbit from the D.C. Circuit’s decision in Common Cause v. Biden is worth noting. In footnote 5, the court discusses the Senate’s exercise of the “nuclear option” last fall:

That opportunity to appeal [from the ruling of the presiding officer] constituted the so-called “nuclear option” the Senate invoked to modify the cloture rule as applied to executive branch and lower federal court nominees. On November 21, 2013, the Senate considered, and defeated, a cloture motion on a nomination to a judgeship on this court. Senator Reid, the majority leader, then raised a point of order to the Chair, positing that a cloture vote for such nominations required only a majority. The Chair rejected the point of order under Rule XXII. Senator Reid then appealed the ruling to the full Senate, and, by a 52-48 vote, the Chair’s ruling was overturned. Thus was set new Senate precedent interpreting Rule XXII in the context of executive and lower federal court nominations.

(citations omitted). This discussion is no doubt dicta, but it provides at least some explanation of what the Senate did, which is more than it appears we will be getting from the Senate itself. The explanation is somewhat self-contradictory, in it describes the Senate as having both “modif[ied]” Rule XXII and issued a new precedent “interpreting” the rule. Literally, of course, the Senate did not modify Rule XXII, which reads today exactly as it did prior to November 21. We therefore can assume that the D.C. Circuit meant that the Senate “modified” the rule by “interpreting” it to mean something other than what it had “interpreted” it to mean before.

The practice of abruptly changing the interpretation of a rule without explanation ought to be troubling enough. But in the case of Rule XXII, the imagination staggers as to what explanation could be given. Did the Senate “interpret” the phrase “three-fifths of the Senators duly chosen and sworn” in Rule XXII to mean a bare majority? Or did it “interpret” Rule XXII to be simply inapplicable to cloture motions for executive and lower court judicial nominations, although there is nothing in the text of the rule or any other source of legal meaning (such as legislative history) to support such an interpretation?

The only possible coherent explanation for the Senate’s action, other than lawlessness, would be that the Senate viewed Rule XXII as unconstitutional. But while the Senate conceivably could have viewed Rule XXII as unconstitutional in its entirety, or as to nominations alone, there is no plausible way it could have viewed the rule as unconstitutional as to executive and lower court nominations, but not as to Supreme Court nominations. Perhaps it was for this reason the D.C. Circuit did not suggest that the Senate’s action stemmed from a constitutional judgment.



2 Replies to “The D.C. Circuit on the Nuclear Option”

  1. Several law professors (over at Conlawprof) have explained/defended the limited ambit of the new Senate precedent in terms of the fact that the new precedent was established in the specific context of Executive Branch nominations and lower federal court nominations — and so (arguably) the new precedent is only on-point in regard to such appointments.

    Admittedly, the rationale for the departure from the traditional interpretation of Rule 22 (to the extent any such rationale could be understood or imagined) would seem to extend also to: (i) all presidential appointments; (ii) debate on legislation, treaties, and constitutional amendments; (iii) procedural votes (controlling the timing of recesses, adjournments, etc); and (iv) votes relating to House and Senate administration (election of presiding officers, and appointments to House and Senate administrative positions).

    I think most people would agree with your interpretation of the Senate’s action. The Senators in the majority concluded that Rule 22 (as traditionally interpreted and enforced) is unconstitutional. But I would like to suggest another interpretation that could explain the Senate majority’s action. The Senators concluded that the written rules of the Senate are not binding because they are not the rules which are referred to in the Constitution’s Rules of Proceeding Clause. The written rules (including Rules 22) are just a guidance document; obedience to the written rules is based on comity — not constitutional obligation. Where the Constitution speaks to rules in the Rules of Proceeding Clause, the Constitution refers exclusively to votes on (contested) points of order.

    I am not saying this position is correct as a matter of interpreting the (original public meaning of the) Constitution. Nor do I claim that any one or more Senators thought or actually defended his/her actions along these lines. I only make the more limited claim that the reasoning I put forward could explain why the Senate acted as it did.


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