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How the Nuclear Option Changed the Judiciary

(Tom Williams/CQ Roll Call File Photo)
(Tom Williams/CQ Roll Call File Photo)

For Sen. Harry Reid, going “nuclear” set the groundwork for his last great act of the 113th Congress.  

A little more than a year after Senate Democrats deployed the “nuclear option” to effectively change the Senate rules on nominations with a simple majority, Democrats up and down Pennsylvania Avenue generally seem happy with the changes, even as the Senate shifts to Republican control for 2015.  

White House Counsel Neil Eggleston on Wednesday highlighted the 134 judges confirmed in the 113th Congress alone, saying that was 44 percent of the total confirmed during President Barack Obama’s tenure. That number included 132 federal district and circuit judges, according to Senate Democrats.  

Those sorts of numbers should give Reid, a Nevada Democrat, reason to be pleased as his smaller caucus takes minority status, thank to the slew of lifetime confirmations to the federal bench that will outlast Obama’s presidency — by decades.  

“Throughout the 113th Congress, Senate Democrats have focused on confirming well-qualified judicial nominees to relieve the judge shortage plaguing our nation’s justice system,” Reid said in a statement touting the statistics. “Despite unprecedented obstruction, today’s statistics show that Senate Democrats were able to overcome political gridlock and confirm the highest number of district and circuit court judges in a single Congress in over thirty years.”  

Of course, that never would’ve happened without the fundamental shift in Senate operations that came last November when the sweeping change in precedent  allowed Democrats alone to get Obama’s nominees through to confirmation. A grand total of 96 judges have been confirmed since that event. The judges confirmed to the bench including the most contentious — Obama’s picks to fill seats on the U.S. Circuit Court of Appeals District of Columbia that Republicans would’ve rather left vacant — that brought the issue to a boiling point, ultimately giving Obama the chance to shape the judiciary .  

The change made through the nuclear option led some longstanding Senate statistics to become functionally obsolete. The number of roll call votes on cloture motions and confirmation votes saw substantial jumps in the 113th Congress, including — as Robert Browning of Purdue University and the C-SPAN archives noted — “the highest number of cloture votes in the history of the Senate.”  

That’s because Republicans retaliated by forcing Democrats to take procedural votes even on relatively uncontroversial nominees.  

The nuclear option alone doesn’t get all of the credit. Democrats received substantial help from a one-off, bipartisan deal in effect for the duration of the 113th Congress that may never be seen again. Back in January of last year, the Senate agreed to a set of modest changes to reduce the amount of debate time after a filibuster has been broken.  

For most executive branch nominees, the time was reduced to eight hours (four of which Democrats could yield back). For federal district judges, the time dropped all the way to what was, in effect, just the one hour under GOP control. That meant that for instance, even if opponents had insisted on burning through all their available debate time on the end-of-session judicial nominations Tuesday night, the Senate could still have finished work on them in a matter of hours instead of days.  

The Senate ultimately confirmed a dozen judicial nominations Tuesday before reaching adjournment sine die.  

Without a renewal of that agreement or another simple-majority change, the sometimes frenetic pace of nomination votes would have no chance of continuing in the 114th Congress, even if Democrats maintained control.  

There’s little expectation that Republicans will mount a serious effort to undo the change in precedent that came through the nuclear option, despite GOP outrage with the maneuver itself and declarations that Reid killed off the Senate. Sen. Ted Cruz, R-Texas, told a small group of reporters before the Senate adjourned that he expected the change to remain in effect.  

“Right now, the members advocating for a return to the higher threshold appear to be a decided minority in the conference,” Cruz said, while also reiterating his own view about the issue.  

“Once it’s been done, I don’t think it makes sense to go back because what we could have in effect is one rule for Republicans and one rule for Democrats. I think what’s good for the goose is good for the gander, and there should be a uniform rule,” Cruz said. “So, I disagreed with making the change, but I think the rule should apply uniformly to both sides.”  

In either case, with Republicans taking committee gavels in 2015, the test will be that much greater, particularly with lifetime appointments, Eggleston said. Obama’s efforts to expand the diversity of the federal bench would continue, however.  

“President Obama will continue to consult with Senators —Democrats and Republicans — to identify lawyers with the necessary intellect, integrity, temperament, and commitment to equal justice under law to serve as lifetime-appointed judges,” Eggleston wrote on a White House blog. “He also will continue his unprecedented commitment to expanding the gender, racial, sexual orientation, and experiential diversity of the men and women who enforce our laws and deliver justice.”  

The 114th: CQ Roll Call’s Guide to the New Congress

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