Josh Chafetz is a professor of law at Cornell Law School. He is the author of "Congress’s Constitution: Legislative Authority and the Separation of Powers."

Senate Democrats have more than 40 votes to filibuster Neil Gorsuch’s nomination to the Supreme Court. In response, Republicans appear to have more than 50 votes to invoke the “nuclear option” — that is, to vote Thursday morning to lower the cloture threshold for Supreme Court nominations to a bare majority. Apocalyptic rhetoric abounds. Senate Majority Leader Mitch McConnell (R-Ky.) referred to the likely filibuster as “a new low,” while Patrick J. Leahy (D-Vt.) suggested that lowering the cloture threshold risked “forever damaging the United States Senate.”


The filibuster has become more routine in the Senate over the past few decades. What was once a highly aggressive tactic used only in cases of extraordinary opposition mutated into a de facto standing requirement: Getting nearly any matter through the Senate required 60 votes.

During the periods in the George W. Bush and Obama administrations when the Senate was controlled by the president’s party, the ability of the minority party to hold up nominees indefinitely caused significant and increasing consternation for the majority. Finally, in November 2013, the Democrats who ran the Senate were sufficiently fed up that they triggered the (first) nuclear option, declaring that cloture on all nominations other than to the Supreme Court would be achieved by majority vote.

To be clear, I have argued that the filibuster is unconstitutional and ought to be nuked for both nominations and legislation. We would never allow legislators to entrench themselves in office by requiring supermajorities to unseat them, so why should we allow a functionally similar threshold for what those legislators do in office? The words “passed,” “determine” and “consent” in the Constitution’s provisions dealing with lawmaking, cameral rulemaking and appointments, respectively, should be understood to contain an implicit premise that a determined and focused legislative majority must be able to get its way in a reasonable amount of time. Or, to put it differently, the Constitution cannot countenance permanent minority obstruction in a house of Congress.

That argument notwithstanding, one can at least imagine a plausible rationale for differentiating legislation from nominations — after all, they fall under different constitutional clauses and may perhaps be governed by different logics. But it is hard to conceive of a good argument for differentiating Supreme Court nominations from other nominations: All federal judges, not just the nine justices, serve for life, after all, and lots of other offices (think chairman of the Federal Reserve or director of the FBI, who serves a 10-year term) are hugely important.

So eliminating the filibuster for other nominations in 2013 made it a sort of vestigial limb for Supreme Court nominees, something easy for majority senators to imagine doing without. This consequence, of course, was perceptible long before this week. Indeed, Sen. Charles E. Grassley (R-Iowa) warned as much in 2013: “If [the majority leader] changes the rules for some judicial nominees, he is effectively changing them for all judicial nominees, including the Supreme Court.” McConnell echoed the warning on the Senate floor two days later. Democrats were thus on notice when this Congress began: Any attempt to filibuster a Supreme Court nominee would lead to the loss of the filibuster for those nominees. A power that one cannot use or credibly threaten to use is no power at all. And that’s why the filibuster for Supreme Court nominees was already dead, even if it was still lurching around the Senate.

Moreover, given the history of legislative obstruction, this is exactly what we’d expect. These days, we tend to talk as if the Senate has always been the more obstructionist chamber, as if there’s something in its constitutional design that makes it sclerotic. But in the 19th century, the House was widely understood to be the chamber where things got gummed up. As Sen. Richard Coke (D-Tex.) put it in 1884, “It is well known … that bills are passed much more rapidly and with much more facility through the Senate than through the House on account of the difference in the constitution of the two bodies, the one small and compact and the other large and unwieldy.”

That was already in the process of changing when Coke spoke. The previous year, the House created the procedure, still in use today, by which legislation is considered under a “special rule,” a device that allows the leadership of the majority party to set the agenda. In 1890, House Speaker Thomas Reed (R-Maine) became fed up with Democrats’ use of the “disappearing quorum”: In the closely divided chamber, they would simply decline to vote, depriving the body of a quorum under its existing rules. In what might be considered the nuclear option for a pre-nuclear age, Reed simply ordered the clerk to record the Democrats’ names for quorum purposes. An appeal of his ruling was then tabled by a vote of 163 (all Republicans) to 0, with Reed counting for quorum purposes the Democrats who refused to vote. The Republican majority codified these and other anti-obstruction measures in the “Reed Rules” of 1890. By the early 20th century, the business of the House was humming along, reaching its zenith under Speaker Joseph Cannon (R-Ill.) in the first decade of the new century.

After that, obstruction in the Senate came to be seen as the major obstacle to legislative efficiency. After the filibuster of a 1917 bill that would have allowed merchant ships to arm themselves as a defense against German U-boat attacks, the Senate adopted its first cloture rule, which allowed debate to be cut off with a two-thirds vote. In the mid-20th century, the filibuster was most prominently used to oppose civil rights legislation, with Southerners filibustering every significant civil rights bill from the 1950s to the 1970s.

As use of the filibuster became more common (and less tied to the particular sectional politics of civil rights), pressure again grew for reform. In 1975, the Senate lowered the cloture threshold to three-fifths; the 1970s also saw the implementation of the “two-track” system, which allowed less-controversial measures to proceed on one track while a filibustered matter was moved to the other. This made filibusters less disruptive to Senate business other than the bill being blocked — but in doing so, it had the unintended consequence of lowering the cost of filibusters and thereby increasing their prevalence. And in an echo of the 1917 and 1975 rules changes, when the three-fifths threshold was seen as intolerably obstructionist for nominations, it was lowered to a simple majority in 2013.

There is a clear pattern here: When the use of a parliamentary procedure becomes so obstructionist that it brings its chamber to a halt, that procedure is changed. It doesn’t happen immediately — pressure takes time to build, and existing practices and norms can be sticky. And of course, it is likely to happen only when the political alignments are right: When different parties control the Senate and the White House, there is unlikely to be much impetus on Capitol Hill for reform. But the more a procedure allows a minority to stall the business of the chamber indefinitely, the greater the pressure for reform. This is perhaps all the more true when the reform at issue is relatively minor, such as applying the same cloture rule for all other nominations to Supreme Court nominations.

So what might this suggest for the future? McConnell has said that he does not expect to do away with the legislative filibuster and that “there’s not a single senator in the majority who thinks we ought to change the legislative filibuster. Not one.” Given that a number of Senate Republicans are skeptical of significant portions of President Trump’s legislative agenda, one can imagine that they feel no tremendous need to smooth the way for that agenda’s passage.
