The Nuclear Option of 2013 and 2017, and How Filibusters for Judges Ended

The filibuster for judges did not die of natural causes. It was killed in installments, by two parties, each of which swears the other fired the first shot. If you want to understand why, you must follow the story in order, because both sides' accounts are true in part and false in the rest.

I will tell it with dates and names, then measure it against the text of the Constitution, then answer the strongest objection to where we ended up. The ending matters, because majority-vote confirmation is now the rule for every federal judge from the district bench to the Supreme Court, and it will cut both ways for as long as the Senate exists.

First, the terms

A filibuster is the use of unlimited debate to block a vote. The Senate has no general rule limiting how long a senator may speak, so a minority can talk a measure to death, or threaten to.

Cloture is the procedure that ends debate. Under Rule XXII of the Senate's standing rules, a motion to invoke cloture needs the votes of three-fifths of the senators duly chosen and sworn, which is 60 of 100. Since 1975 that has been the threshold; before then it was two-thirds of those present.

A point of order is a senator's claim that the Senate is violating its own rules. The presiding officer rules on it, and the Senate can vote to overturn or uphold the ruling.

The nuclear option is the name for a maneuver in which a majority of the Senate, instead of amending Rule XXII by the ordinary route, which would itself need a two-thirds vote to end debate on a rules change, simply sets a new precedent by majority vote. A senator raises a point of order that cloture on a certain kind of nomination should need only a simple majority. The chair rules against it, because the rule says 60. A majority then votes to overturn the ruling. The result is a new precedent, and the rule is changed in practice without being changed in text. It is called "nuclear" because the move is considered extreme, and because it makes a lasting change by a bare majority. Republicans, when they considered it in 2005, called it the "constitutional option."

Before the fight: the old norm

For most of American history, a judicial nominee with majority support got a vote. There were exceptions. The most famous was the 1968 episode involving Justice Abe Fortas, whom President Lyndon Johnson nominated to be Chief Justice. A bipartisan group of senators opposed him, the Senate failed to end debate, and the nomination was withdrawn. But as a general matter, nominees with majority support were confirmed.

That norm began to fray in the contests over Robert Bork in 1987, described in The 1987 Bork Hearings Turned Supreme Court Confirmation Into a Campaign, and over Clarence Thomas in 1991. Those were fights about nominees, though, and the Senate ended up voting on them. What was new in the 2000s was the routine use of the filibuster to prevent a vote.

Stage one: Miguel Estrada and the Bush appeals nominees

In 2001 President George W. Bush nominated Miguel Estrada, a lawyer born in Honduras who had come to the United States as a teenager, to the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit is widely regarded as the second most important court in the country, and a feeder for the Supreme Court. Democrats regarded the nomination as a stepping stone to the high court.

In 2003 Senate Democrats filibustered Estrada. The Senate held several cloture votes, and none got to 60. After months of stalemate, Estrada withdrew his nomination in September 2003. It was the first filibuster of an appeals court nominee, and it set the pattern.

Democrats went on to filibuster several other Bush nominees to the courts of appeals, including Priscilla Owen, Janice Rogers Brown and William Pryor. Their position was that the Constitution's "advice and consent" is a real check and that the minority was entitled to use the rules to resist nominees it considered extreme. Republicans' position was that a nominee with majority support was entitled to an up-or-down vote. Each side's position was, you will notice, a position it later reversed.

The 2005 detour: the Gang of 14

In 2005 the Republican majority leader, Senator Bill Frist, prepared to use the nuclear option to end the filibuster of judicial nominees. The threat set off a confrontation, and it was defused by a bipartisan group, known as the Gang of 14. Seven Republicans and seven Democrats signed a memorandum in May 2005. The Democrats agreed not to filibuster judicial nominees except in "extraordinary circumstances." The Republicans agreed to oppose the nuclear option. The deal let votes proceed on Owen, Brown and Pryor, and the Senate confirmed them.

The deal bought about eight years of relative peace. It also left the term "extraordinary circumstances" undefined, and the fighting resumed when the circumstances changed.

Why it mattered: the 2005 compromise showed that a significant number of senators in both parties understood the danger of the nuclear option and were willing to give something to avoid it. It also showed that what held the norm in place was not a rule but a pact, and a pact lasts only as long as the people who made it.

Stage two: Harry Reid, November 2013

Fast forward. President Barack Obama nominated three people to the D.C. Circuit in 2013: Patricia Millett, Nina Pillard and Robert Wilkins. Senate Republicans, in the minority, blocked cloture on their nominations, and in the end Democrats said they had had enough. Democrats' reason was that this was obstruction of a kind that had no precedent.

On November 21, 2013, the Senate Majority Leader, Harry Reid, raised a point of order, and the Senate voted 52 to 48 to overturn the chair's ruling. The new precedent: cloture on nominations, other than for the Supreme Court, would require only a simple majority. It applied to district judges, circuit judges and executive branch nominees. Reid did it, and said the Senate had to adapt to the obstruction of the day.

The change was done by a bare majority over the opposition of the minority party, and it set the template for what was to follow.

Why it mattered: it ended the filibuster for lower-court judges, and it did so by the very maneuver Democrats had condemned when Republicans threatened it in 2005. It left only one exception, the Supreme Court, and that exception did not last.

Stage three: McConnell, April 2017

In February 2016 Justice Antonin Scalia died. The Senate, then under Republican control, did not act on President Obama's nominee, Judge Merrick Garland, and the seat stayed open through the 2016 election. For that story see Garland in 2016 and Barrett in 2020, and What Advice and Consent Really Means. After the election, President Donald Trump nominated Judge Neil Gorsuch of the Tenth Circuit.

Democrats filibustered Gorsuch. A cloture vote on April 6, 2017, failed to reach 60. McConnell then raised a point of order, the chair ruled against him, and the Senate voted 52 to 48 along party lines to change the precedent. The new precedent applied the 2013 rule to the Supreme Court: cloture on a Supreme Court nomination now required only a simple majority. Gorsuch was confirmed the next day, April 7, by a vote of 54 to 45.

Each party used the nuclear option once, against a different category of nominee, and each party said it was responding to the other. In 2019, Republicans extended the principle by reducing post-cloture debate time for most district judges and sub-cabinet nominees to two hours, from the previous thirty. That was a smaller change, and it too was done by precedent rather than by amending the rule.

Who started it? The honest accounting

The question of who started it has no clean answer, and that is the most important thing I can tell you about it.

1. Democrats began the modern use of the filibuster against appeals court nominees, with Estrada and the Bush nominees, from 2003.
2. Republicans threatened to end it in 2005, and the deal that followed was made by both parties.
3. Republicans blocked Obama's D.C. Circuit nominees in 2013, and Democrats ended the filibuster for lower-court and executive nominees.
4. Democrats filibustered Gorsuch in 2017, and Republicans ended it for the Supreme Court.

Every link in the chain is a response to the previous one, and each side's partisans like to start the story at the point most favorable to them. A Republican will begin in 2013. A Democrat will begin in 2017. I began in 2003, because that is where the modern use of the filibuster against judges starts. But the intellectually honest answer is that both parties escalated, and both can quote the other's earlier words back at it.

The constitutional yardstick

Now the measure of the Founders. Does the Constitution require a supermajority to confirm a judge? It does not.

Article II, Section 2 says the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint... Judges of the supreme Court, and all other Officers of the United States." The text does not specify a vote threshold for appointments. It does specify one for treaties: the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The framers knew how to require a supermajority when they wanted one. They wrote it for treaties, for conviction on impeachment, for expelling a member and for overriding a veto, and they did not write it for appointments.

Article I, Section 5 says that "Each House may determine the Rules of its Proceedings." That is the source of the Senate's power to make rules, including the cloture rule, and arguably the power to change its precedents. The 60-vote threshold for cloture is a Senate rule, not a constitutional command. It is a matter of the Senate's own judgment, and the Senate may revise it.

Hamilton in Federalist 22 criticized supermajority requirements in the old Articles of Confederation, warning that "a pertinacious minority can control the opinion of a majority." And in Federalist 76 he defended the Senate's confirmation role as a check on the President, which he called a check upon "a spirit of favoritism." A check, in that account, is a vote, not a standing power to prevent a vote.

So on the text, a majority-vote confirmation rule is the closer fit to the design. The filibuster for judges was an innovation of Senate rules and custom, and not a part of the Constitution's structure.

The strongest objection

The strongest objection to the change is not constitutional but prudential. The 60-vote rule forced Presidents to choose nominees who could draw some support from the other party. It pushed toward moderation, and it protected the legitimacy of the courts. With majority-vote confirmation, a President with a Senate majority can confirm anyone his party agrees on. Critics say that this raises the stakes of every Senate election, increases partisanship in confirmations, and gives future majorities of either party an incentive to nominate younger and more ideologically committed judges, since they have no need to bargain.

That is a serious argument, and I think part of it is right. Here is my answer, in numbered points.

1. The moderation was partly an illusion. The filibuster, as used from 2003 on, did not produce consensus. It produced stalemate, and then, as each side retaliated, the use of procedure to block rather than to bargain. The norm of consensus had already broken before the rule changed.
2. Majority rule in confirmations is what the text suggests. If a President's nominees are bad, the answer in a republic is to defeat them by vote and to defeat the party that nominated them at the next election. A minority's ability to deny a vote at all takes accountability away from the Senate, because no one is on record.
3. The cost of the change falls on both parties equally and over time. Whoever has the majority confirms judges, and whoever is in the minority loses leverage. That symmetry is the best reason to hold the principle rather than the partisan advantage, because you will be in the minority sooner or later.
4. Other restraints remain. The Senate's power to reject a nominee by majority is untouched. The blue slip, described in The Blue Slip Explained, a Senate Courtesy That Shapes Every Federal Bench, still gives home-state senators a hold on certain nominees. The Senate's decision in 2016 not to consider a Supreme Court nominee shows the consent power is real.

I will concede one more point to the critics. The loss of the filibuster makes the Senate's role more purely partisan, and judges, who ought to be above the fray, become the prize in an annual contest. A conservative who values the courts as courts should be uneasy about that. The fix is not to restore a rule that the Senate abandoned, but to restore the habit of judging nominees by their qualifications and judicial philosophy rather than by their party, and to remember that the rules apply to your side as well.

What majority-vote confirmation means

1. For nominees: the question is whether a nominee can hold 50 votes, with the Vice President available to break a tie. A nominee's own party's moderates become the important audience.
2. For presidents: the Senate majority is the decisive fact. A President with a friendly Senate can fill vacancies quickly. A President facing an opposition Senate may find vacancies sit unfilled, as the 2016 vacancy did, and will have little ability to bargain.
3. For the Senate: the minority has fewer tools. The remaining leverage is delay, the blue slip and the power of the public hearing.
4. For citizens: your Senate vote now matters more to the federal bench than ever, since a majority of the Senate decides who sits for life. See Nine Justices Since 1869, and Why the Number Should Stay Nine on how the size of the Court has been settled, and When the Senate and the President Disagree on Judges, History Shows What Follows for what history shows happens when the Senate and the President differ.

The Court's own role in all this, as the least dangerous branch, is the subject of Federalist 78 Called Courts the Least Dangerous Branch. Was Hamilton Right?. If the judiciary is the branch with only judgment, then who gets to wield that judgment is among the most consequential decisions a Senate can make, which is exactly why both sides fought over it.

The case in brief

1. The judicial filibuster was used against appeals court nominees from 2003, starting with Miguel Estrada, and the Gang of 14 deal of 2005 held the peace for eight years.
2. Harry Reid ended the filibuster for lower-court and executive nominees on November 21, 2013, and Mitch McConnell ended it for the Supreme Court on April 6, 2017, each by a 52 to 48 vote overturning the chair.
3. Both parties escalated, and each can quote the other's earlier statements back at it.
4. The Constitution requires a supermajority for treaties but not for appointments, and the 60-vote cloture threshold is a Senate rule that the Senate may change.
5. The cost of the change is a more partisan confirmation process, and the answer to it is principle, not partisan advantage.

What you can do: look up how your own two senators voted on the last judicial nominee from your state, and write to ask whether they would hold their position if the other party held the White House.