The U.S. Senate has changed its rules regarding the approval of judicial nominees by employing the nuclear option. This move, led by Majority Leader Sen. Harry Reid, uses a simple majority to change Senate rules to block filibusters of presidential nominees, allowing them to pass with 51 votes.
Previously, the effective threshold for approval was 60 votes because a three-fifths vote was required to invoke cloture, which is the only way to end a filibuster. This rule change follows instances where the Senate failed to stop filibusters of nominees to the Court of Appeals for the District of Columbia Circuit, including Robert Wilkins, Cornelia Pillard, and Patricia Ann Millett.
According to a Brennan Center study, the amount of time spent on the Senate floor for cloture votes has risen by 50 percent in the last three Congresses compared to any time since World War II. The filibuster is governed by Senate Rule XXII, though practice varies across judicial nominations, executive branch nominations, and legislative action.
The debate over filling vacancies on the D.C. Circuit has focused on whether the caseload warrants a full complement of judges and the potential ideological shift on the court. Sen. Orrin Hatch of Utah previously argued on the Senate floor that the D.C. Circuit does not need three additional judges due to a relatively light caseload.
Victoria Bassetti, a Brennan Center contributor, noted that the filibuster has enabled a growing politicization of the judicial nomination and confirmation process over the last 20 years.
The use of the filibuster often creates a conflict between the ideals of progress and minority rights. While the practice is a central tool for senators, the recent shift in rules represents a significant departure from previous parliamentary expectations.
