Editor’s Note: This excerpt from Bench Brawl by Lyle Deniston, a National Constitution Center Constitutional Spotlight Series monograph, recounts the last time the filibuster issue threatened a constitutional meltdown in the Senate.
The Republicans’ frustration with Democratic filibusters of Bush nominees to appeals courts reached a new level in May 2005. The Republican Senate leaders announced that, if the filibusters continued, they would attempt a drastic procedure – one that soon would be called the “nuclear option” for its capacity to destroy the capacity of the Senate to work together at all.
Those who suggested the procedure preferred to call it the “constitutional” option because they believed it was an approach that would restore constitutional normalcy to the judicial confirmation process. The threat was raised as the Senate was about to take up the nomination of a nominee, Priscilla Owen, to be a federal appeals court judge – a nomination that had been blocked by four prior Democratic filibusters.
Under the suggested option, the Republic majority leader would call up a proposal to change Senate rules to end the filibuster (at least as to judicial nominations). A “point of order” would then be raised, claiming that the Senate could adopt a rule change by simple majority vote (since, it would be argued, the two-thirds rule for changing the rules violated the Constitution). Such a point of order would then be referred to the Vice President, presiding over the Senate. The Vice President, a Republican, would uphold the point of order. The Vice President’s ruling would then be put to the Senate for a vote; only a simple majority would be necessary to sustain it. The rules would then be altered.
In the midst of a fairly anxious discussion of that idea, a group of 14 senators, from both parties (soon called the “Gang of 14”) issued a joint announcement that cooled off the sentiment for the drastic option. The 14 said they would vote to invoke cloture and stop debate on three pending court nominations, so that those could then go to up-or-down votes.
They went on to declare their opposition to the “nuclear” or “constitutional” option, and expressed their view that filibusters on judicial nominees should be reserved only for “extraordinary circumstances.” The crisis of the moment abated, without the Senate having to vote on any rule provision to carry out the initiative of the “Gang of 14.”