The Contemporary Presidency: The “Nuclear Option” Has Fizzled, Again: Here's Why and What to Do about It

Abstract

Senate majorities of both parties have altered the rules of debate to speed up deliberations on presidential nominees, particularly on judicial nominations. These deployments of the Senate's "nuclear option," however, have had no demonstrable effect with respect to judicial nominations. We suggest the evidence highlights the role of "opportunism" rather that partisan obstruction in delaying nominations. We also document how thwarting opportunism by removing substantive legislation in favor of exclusively considering judgeships early in an administration's tenure can speed up deliberations. We recommend seven specific reforms along these lines to improve the appointments process.

Going Nuclear: Federalist Society Affiliated Judicial Nominees’ Prospects and a New Era of Confirmation Politics1

“…15 which reduced the amount of time for debate after cloture was invoked on district court nominees. This resolution set the stage for the first “nuclear option,” enacted in November 2013, by sustaining the decision of the chair on Majority Leader Harry Reid’s (D-NV) point of order that a majority vote could invoke cloture on nominations to Article III courts (excluding the Supreme Court) (Ba et al, 2020; Chafetz, 2017; Whittington, 2017). At the end of the congress, the Senate allowed the reduced vote threshold to stand but reset the post-cloture debate times back to the pre-November 2013 standard.…”

“…Of course, the FedSoc alone is not responsible for the changing judicial nominations politics. Judicial nominations have become increasingly politicized over the past few decades and the processes governing them today have been reshaped in many ways including how many senators are required for debate on a nominee to terminate, how long senators can debate a nominee, and how much deference is given to home-state senators (Ba et al, 2020; Binder & Maltzman, 2002; Black et al, 2011; Collins & Ringhand, 2013; King & Ostrander, 2020; Primo et al, 2008; Rhode & Shepsle, 2007).…”

“…Senators opposing a judicial nominee are most likely to engage in delay tactics, including using the filibuster, designed to get the nominee to withdraw or to hamstring the appointing president’s policy agenda rather than attempting to defeat a nominee during a roll call vote (Shipan & Shannon, 2003; Steigerwalt, 2010). In 2013 Senate Democrats changed the threshold for invoking cloture to end debate on a nominee and kill any chance of a filibuster; in practice, they reduced the threshold for moving a judicial nomination through the Senate from three-fifths support to a simple majority--a change which Senate Republicans capitalized upon when they took back the majority in the following congress (Ba et al, 2020). Taken together, changes to Senate procedure and the alleged influence of groups like the Federalist Society suggest the contemporary judicial nominations process may be significantly different from the process a little over a decade ago.…”