The Nuclear Option for Stopping Filibusters

Abstract

They did not seem to be in a position to help the other body. Yet, on October 10, 2002, members of the House Judiciary Committee listened to witnesses discuss how the Senate could be more efficient. In 2003, Senate committees heard similar testimony. During the hearings, eminent law professors suggested that the practice of allowing filibusters on judicial nominees could not be imposed by previous Senates on the current one. It, therefore, would be within the power of the 51 Republican Senators to uphold a point of order against the filibuster and proceed to govern by majority rule (Kmiec 2003). In Washington, this course of action is called the “nuclear option.” Although the informal use of the nuclear option has several variations, each variation has a common underlying feature that can be formally defined. The nuclear option is a dramatic refusal to recognize delaying tactics permitted under the rules that facilitates the institutionalization of majoritarian procedures in a legislative body. Occurring in legislatures such as the 1881 British House of Commons, the use of the nuclear option can be a watershed event wherever the majority lacks an unassailable way to end debate.