Deconstructing a Right-Wing Talking Point on the Nuclear Option

As they advance their nuclear option agenda, one of the most favored talking points of the radical right wing is that that the Senate has never denied an up-or-down vote to a judicial nominee once that nominee reached the Senate floor. Bill Frist made this point yesterday:

Never in 214 years of Senate history had a judicial nominee with majority support been denied an up-or-down vote.

How did these judicial nominees even get to the Senate floor? Before a judicial nominee ever reaches the floor, he or she must pass through the Senate Judiciary Committee. Rule IV of the Senate Judiciary Committee states:

The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a rollcall vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

In other words, debate on a judicial nominee can end only if a rollcall vote obtains at least one vote from the minority party. Proposed by Republicans and enacted in 1979, Rule IV has been upheld for 24 years and by five different chairmen of both parties.


In 1997, when Clinton’s nominee for assistant attorney general for civil rights at the Department of Justice, Bill Lann Lee, came to a floor vote, Senator Hatch said:

Rule IV of the Judiciary Committee rules effectively establishes a committee filibuster right… Absent the consent of a minority member of the Committee, a matter may not be brought to a vote.

On February 27, 2003, then-Chairman Orrin Hatch threw this rule out the window and employed his own mini-nuclear option. When faced with upholding this rule during the committee hearing for Jeffrey Sutton, Deborah Cook and John Roberts (three controversial circuit court nominees), Hatch went against his own previous statement, overrode the rule, and said to the minority: “[Y]ou have no right to continue a filibuster in this committee.” The nominations moved out of committee, paving the path for the nominees currently being debated on the Senate floor, Janice Rogers Brown and Priscilla Owen, to clear the Committee by a strictly party-line vote.

So next time you hear right-wingers say this is the first time that the Senate has failed to give an up-or-down vote to a nominee on the floor, remember that it was because they employed the mini-nuclear option and circumvented the Judiciary Committee rules.