The Nuclear Option: A Sad Day for America

Why did the Democrats in the Senate enact the so-called "nuclear option"? In the Senate, unlike the House of Representatives, a minority of Senators can prevent a vote on proposed legislation, presidential nominations or other legislative action by engaging in a filibuster. Traditionally, as in the wonderful James Stewart movie Mr. Smith Goes to Washington, this meant that a senator could "hold the floor" of the Senate and prevent a vote on a pending matter for as long as he could keep talking. The filibuster was perhaps most famously used by Southern Senators to block civil rights legislation.

In more recent years, the Senate amended its rules to permit a Senator to effect a filibuster without actually having to do the talking. For all practical purposes, all a Senator now has to do to implement a filibuster is to say that he is filibustering. The only way to end a filibuster is by a cloture vote - that is, a vote to "close off" the filibuster and let the matter come to a vote. In the modern era, 60 votes (out of a possible 100) are required for cloture. Thus, a Senator can now prevent the Senate from acting on proposed legislation, presidential nominations or other legislative action as long as there aren't 60 members of the Senate willing to invoke cloture.

Although the filibuster obviously can be abused, it has traditionally served a useful role. Fundamentally, it was designed to permit a minority of the members of the Senate who care deeply about a particular issue in extraordinary circumstances to prevent the majority from having their way. It is one of the many checks-and-balances in the American constitutional system designed to protect minority interests.

In recent years, however, members of the Senate have increasingly yielded to the temptation to resort to the filibuster to block unexceptional legislation, nominations and other matters. Although both parties have tended to use the filibuster more often than in the past, its use by Republican Senators has exploded since the election of Barack Obama.

In the 60 years since Dwight Eisenhower was elected president, members of the Senate used the filibuster to block the confirmation of presidential nominations a total of 92 times. Of those 92 blocked nominations, 72 - or 78% - were nominations made by President Barack Obama. Put differently, in the preceding 55 years, there was an average of .3 filibusters per year to block a presidential nomination. During the presidency of George W. Bush, the Democrats used the filibuster a total of 7 times to block a presidential nomination, or an average of less than once per year.

Since President Obama took office, Republicans have used the filibuster an average of 14.4 times per year to block his nominations. That is 50 times higher than the 1952-2008 average, and more than 14 times higher than during the administration of President George W. Bush. As Senate Majority Leader Harry Reid noted today, in the history of the United States, presidential nominations of federal district court judges have been filibustered a total of 23 times. Twenty of those 23 filibusters have been by Republicans during the presidency of Barack Obama.

The plain and simple fact is that the Republicans in the Senate are completely out of control. Republicans who now complain that the Democrats have suddenly changed the rules are being completely disingenuous. Relative to 220 years of history, they have changed the rules and left Democrats with no real choice but to restore some sense of order. Like their decision to shut down the government in an effort to coerce the nation into changing a law they could not legally change, the Republicans' abuse of the filibuster has been a lawless distortion of the American system of governance.

It is a shame that the Republicans brought things to this pass. The filibuster is a useful tool to prevent a president whose party controls the Senate from pushing through the nomination of an appointee who is incompetent, who lacks integrity or whose views are truly outside the "mainstream" of respectable opinion. That we have now lost that important safeguard is deeply unfortunate. But the responsibility for this development rests squarely on the shoulders of the Republican members of the Senate, who have brought this not only upon themselves, but upon the nation. It is a sad day for America.