The Irony of the Nuclear Option

An important aspect of the debate over the “nuclear option” that is rarely addressed in the media is its questionable legality. If the majority chooses to abolish the judicial filibuster, as is becoming increasingly likely, the process would look something like this. Immediately after a Democratic senator objects to the ending of debate, a republican senator would ask the President of the Senate, Vice President Dick Cheney, to rule that the judicial filibuster is either unconstitutional, or in violation of Senate rules, and Cheney has said that he would do so. A simple majority would then be all that would be required to uphold the ruling.

However, a ruling of this nature would clearly be contrary the Constitution, as well as the rules and precedent of the Senate. While it is true that the Constitution does not give the minority the power to filibuster, it does give the Senate the power to set its own rules. The Senate rules require 3/5 majority to end debate on the confirmation of judicial nominees, and a 2/3 majority to end debate on a motion to suspend the filibuster rule. Nowhere in the rules are judicial filibusters prohibited. Senator Harry Reid was quoted by the Christian Broadcasting Network as saying, “the parliamentarian of the United States Senate has said [the nuclear option is] illegal." The irony is that the nuclear option is illegal, but the filibuster is not.