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ONLINE NEWSHOUR Lesson Plan:The Nuclear Option

Supreme Court Building
5.20.05
Politics and Economy:
Judgment Day
More on This Story:
History of the Filibuster

There's a battle raging in Congress over President Bush’s judicial nominees that will have far reaching implications not only for the nation's courts, but also potentially for the way the U.S. Senate conducts business. Janice Rogers Brown and Priscilla Owen are the nominees who might trigger the "nuclear option" — the end of the filibuster.


THE PRACTICE

A common dictionary definition of filibuster is: "The use of obstructionist tactics, especially prolonged speechmaking, for the purpose of delaying legislative action." In terms of the current debate it means preventing controversial judicial nominations from coming up for a vote. The only sure way to stop a filibuster is a vote of "cloture", suspending debate, which requires the support of 60 Senators — the Republicans hold 55 seats at this time. The "nuclear" option, proposed by Senate Majority Leader Bill Frist would change the Senate rules to allow a cloture vote of a simple 51-49 majority. The very process of changing the rule has become a matter of a numbers crunch. The chamber has historically operated on the understanding that a change to the rules requires the vote of two-thirds of its members. However, Frist and some other Republicans say this is a matter of tradition, not a fixed rule; so filibusters can be abolished on a simple majority vote.

THE WORD

Those favoring the nuclear option might use the word's derivation to make their case that the tactic hampers democratic progress rather than protects it. The word has been traced to several variations of a term for "pirate" — Spanish and Portuguese pirates, "filibusteros", French "fribustier", which in turn came from the Dutch "vrijbuiter."

THE HISTORY

The term filibuster has a long history in American politics — coming into popular use in the early 19th century. Originally, memberS of the House could filibuster as well, but as their numbers grew the practice became unwieldy; the Senate however continued to view filibusters as a way of ensuring that every member could have his say...at length.

At first Senators had no tactic to stop a filibuster at all. In 1841 when Henry Clay tried to force a vote on his unpopular bank bill by changing the rules in allowING a majority vote to close debate, Senator Thomas Hart Benton accused Clay of trying to "stifle" the Senate. In 1917, at the urging President Woodrow Wilson, Senators adopted the "cloture" rule (Rule 22), that allowed the Senate to end a debate with a two-thirds majority vote. In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or sixty of the current one hundred senators.

There have been many famous filibusters in Senate history — although one of the most famous is the fictional filibuster given by Jimmy Stewart in MR. SMITH GOES TO WASHINGTON — itself a demonstration of the power of one citizen in the world of political power brokers. Other famous filibusters are:

  • 1919: The Senate invoked cloture to end a filibuster against the Treaty of Versailles
  • 1930s: Noted and tireless orator Senator Huey Long used the tactic against several bills he thought worked against the common man. He would recite Shakespeare and read recipes.
  • 1957: Strom Thurmond filibustered for 24 hours and 18 minutes against the Civil Rights Act of 1957
  • 1964: Cloture was invoked after a fifty-seven day filibuster against the Civil Right Act of 1964
  • 1968: A filibuster by Republicans and Southern Democrats caused Abe Fortas, Lyndon Johnson's nominee to replace retiring Chief Justice Earl Warren to be withdrawn from consideration for the leadership post.
JUDGING JUDGES AND THE NUCLEAR OPTION

As the filibustering of Abe Fortas shows, both parties have used the tactic to block the advancement of judicial candidates. There is disagreement over whether President Bush's nominees have fared worse than previous presidents. A NEW YORK TIMES analysis of the numbers found that Mr. Bush's averages were about equal with those of President Clinton. But these numbers are still cause for debate. Some note that Mr. Bush has fared somewhat worse in the higher power federal seats. But according to THE ECONOMIST "Lower down the judicial ladder Republican appointees outnumber Democratic ones in ten of the country's 13 circuit courts and account for 94 of the 162 active appeals court judges."

Mr. Bush's nominees have faced more filibusters, but President Clinton and the first President Bush's nominees were more often kept from being voted on by other means. And some critics would say that previous presidents did not have Mr. Bush's tenacity, who often renominates judges who don't make it through their first time in committee. Mr. Bush has also switched to having his potential judges vetted by the Federalist Society rather than the American Bar Association, responsible for the task under previous presidents.

Learn more about the federal court system and the current nominees.

Sources: THE NEW YORK TIMES; THE ECONOMIST; The Federalist Society; The American Bar Association; U.S. Courts; U.S. Senate Committee on the Judiciary; Federal Judicial Center; The Supreme Court of the United States; American Bar Association Judicial Vacancies; Department of Justice, Office of Legal Policies; Year-end Report on the Federal Judiciary

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