If you want to establish the political groundwork for a future expanded/packed Supreme Court, playing with these kind of tricks is how you get there.
There are many arguments a future Democratic administration could use to justify expanding the court. The argument for preserving the current Court size and conservative majority comes down to comity and “this is how it’s been done for decades, the current majority was arrived at fair and square, so let’s not change it even if we’d like to”. Get too experimental in how you maintain that majority, you’re handing over the moral argument.
Full disclosure: I am very much *in favor* of the Democrats expanding the court in a future administration, and the main challenge there is convincing my fellow Democrats. These tactics will make that argument wildly easier.
I think a lot of things in the Senate are going to depend on how the next opposition majority in the Senate behaves. If the Dems take the Senate in 2027 and completely blockade SCOTUS nominations that arise, we are going to see some institutional innovation in the coming years. I can’t decide if I think they are actually going to do it, but I lean toward yes. Surely will be interesting.
They absolutely will, and (1) the norm of doing this has already been established (as you point out) so that horse is out of the gate, and (2) Trump is going to nominate someone indefensible, during a time when respect for the Court is already at dangerous lows. No matter how much you might want to see a Republican court, Trump is going to make that fight into a poisonous liability.
Quibbling about the terminology, I recall back during the 2013 drama, that some experts were arguing that the term "nuclear option" was being misapplied. That it referred not to ending the filibuster for types of nominees, but rather the response to it. The idea being that if the majority ended the filibuster, that the minority would invoke what they called the nuclear option, which was to object to every single instance of requesting unanimous consent henceforth, grinding the entire business of the Senate to a halt, until the majority restored the filibuster.
Am I totally misremembering this? I can't seem to find discussion of this online, but I swear it was a thing. I realize that the current use of the term seems settled, but I really thought there was disagreement at one time.
This is correct. The “nuclear option” originally referred to the excepted response to a change to the filibuster via a majority precedent ruling. When it turned out no one actually went nuclear, I think the term shifted over to the actual precedent-setting process.
One obvious response of an Senate majority is to change the rules, which the majority can do, so that they can reconsider at any time prior to the judge actually getting the commission and thus taking the bench. It's hard to see how that would be held unconstitutional. You claim it's unclear how they would do this. What is unclear about it?
First, it’s a separation of powers question, so any changes to the Senate rules to this effect would be justiciable, and you can bet the executive branch would object to such rules. The courts took mention this hypothetical as an aside in U.S. v Smith—declining to take an opinion on it. But it seemed pretty clear they would weigh in if the Senate tried to make revocable confirmations.
What makes it hard procedurally is that once you send the nomination back to the president with consent, you don’t actually possess it. So what we are talking about is a either (a) a new resolution to that effect, or a (b) contingent confirmation, with the revocation ability built into it. The latter wouldn’t be a thing here, since the majority that gave the consent would be the one friendly to the executive. Th former seemingly has two problems: first, under current rules consideration of a resolution is subject to a filibuster. So yo are talking about nuking the filibuster just to get started. Second, it’s not clear what it would *be.* A Senate resolution doesn’t typically have any force outside the Senate; the one that do have a dubious history—it starts to look like a legislative veto. So I’m not sure what the actually form of a revocation takes.
I agree with you there are counter-measures future majorities could take against these practices. But if blockades become a real thing, there’s an equilibrium where both sides see the benefit of advanced confirmations, and don’t want to ultimately derail them.
Ok, so what's unclear is how a future majority enforces changed rules retroactively, not how they could cut off the practice in the rules going forward.
At this point, the nuclear option isn't worthy of the name.
This is a very interesting strategy. I understand filling vacancies pending the confirmation of a successor, but confirming positions that are not vacant without a resignation of some sort is unprecedented. First, realistically, I doubt Senate Republicans would go along with this, and if they did, Democrats would certainly object to any UC request to table a motion to reconsider. And reconsider they will just as soon as they assume control of the US Senate, short of the vacancy occurring in time, and the new Justice being sworn in, just before they pack the court.
If you want to establish the political groundwork for a future expanded/packed Supreme Court, playing with these kind of tricks is how you get there.
There are many arguments a future Democratic administration could use to justify expanding the court. The argument for preserving the current Court size and conservative majority comes down to comity and “this is how it’s been done for decades, the current majority was arrived at fair and square, so let’s not change it even if we’d like to”. Get too experimental in how you maintain that majority, you’re handing over the moral argument.
Full disclosure: I am very much *in favor* of the Democrats expanding the court in a future administration, and the main challenge there is convincing my fellow Democrats. These tactics will make that argument wildly easier.
I think a lot of things in the Senate are going to depend on how the next opposition majority in the Senate behaves. If the Dems take the Senate in 2027 and completely blockade SCOTUS nominations that arise, we are going to see some institutional innovation in the coming years. I can’t decide if I think they are actually going to do it, but I lean toward yes. Surely will be interesting.
They absolutely will, and (1) the norm of doing this has already been established (as you point out) so that horse is out of the gate, and (2) Trump is going to nominate someone indefensible, during a time when respect for the Court is already at dangerous lows. No matter how much you might want to see a Republican court, Trump is going to make that fight into a poisonous liability.
Quibbling about the terminology, I recall back during the 2013 drama, that some experts were arguing that the term "nuclear option" was being misapplied. That it referred not to ending the filibuster for types of nominees, but rather the response to it. The idea being that if the majority ended the filibuster, that the minority would invoke what they called the nuclear option, which was to object to every single instance of requesting unanimous consent henceforth, grinding the entire business of the Senate to a halt, until the majority restored the filibuster.
Am I totally misremembering this? I can't seem to find discussion of this online, but I swear it was a thing. I realize that the current use of the term seems settled, but I really thought there was disagreement at one time.
This is correct. The “nuclear option” originally referred to the excepted response to a change to the filibuster via a majority precedent ruling. When it turned out no one actually went nuclear, I think the term shifted over to the actual precedent-setting process.
One obvious response of an Senate majority is to change the rules, which the majority can do, so that they can reconsider at any time prior to the judge actually getting the commission and thus taking the bench. It's hard to see how that would be held unconstitutional. You claim it's unclear how they would do this. What is unclear about it?
First, it’s a separation of powers question, so any changes to the Senate rules to this effect would be justiciable, and you can bet the executive branch would object to such rules. The courts took mention this hypothetical as an aside in U.S. v Smith—declining to take an opinion on it. But it seemed pretty clear they would weigh in if the Senate tried to make revocable confirmations.
What makes it hard procedurally is that once you send the nomination back to the president with consent, you don’t actually possess it. So what we are talking about is a either (a) a new resolution to that effect, or a (b) contingent confirmation, with the revocation ability built into it. The latter wouldn’t be a thing here, since the majority that gave the consent would be the one friendly to the executive. Th former seemingly has two problems: first, under current rules consideration of a resolution is subject to a filibuster. So yo are talking about nuking the filibuster just to get started. Second, it’s not clear what it would *be.* A Senate resolution doesn’t typically have any force outside the Senate; the one that do have a dubious history—it starts to look like a legislative veto. So I’m not sure what the actually form of a revocation takes.
I agree with you there are counter-measures future majorities could take against these practices. But if blockades become a real thing, there’s an equilibrium where both sides see the benefit of advanced confirmations, and don’t want to ultimately derail them.
Ok, so what's unclear is how a future majority enforces changed rules retroactively, not how they could cut off the practice in the rules going forward.
At this point, the nuclear option isn't worthy of the name.
This is a very interesting strategy. I understand filling vacancies pending the confirmation of a successor, but confirming positions that are not vacant without a resignation of some sort is unprecedented. First, realistically, I doubt Senate Republicans would go along with this, and if they did, Democrats would certainly object to any UC request to table a motion to reconsider. And reconsider they will just as soon as they assume control of the US Senate, short of the vacancy occurring in time, and the new Justice being sworn in, just before they pack the court.
The majority could just enter, make, and table the motion to reconsider immediately. You don’t need UC to do that.
I think parties might be hesitant to try this, too.