The "Nuclear Option" - What Does it Mean for the Supreme Court?

After the 2004 election, the US Senate is made up of 55 Republicans, 44 Democrats, and one Independent. It takes only 41 votes to sustain a filibuster. However, Senate Republicans threatened to employ a “nuclear option” which would disallow filibusters on judicial nominations so that confirmation of nominees would require only a simple 51-vote majority.

The Feminist Majority was part of a broad coalition of women’s rights, civil rights, lesbian and gay rights, environmental, labor, and disability rights groups that has been urging Senate Democrats to filibuster extremist, right-wing nominees to the federal courts.

On April 6, 2005, the Feminist Majority joined Senate Minority Leader Harry Reid (D-NV), along with other progressive groups and activists, in rallying at the Supreme Court to oppose the so-called "nuclear option." At this rally, over 1 million petitions were delivered in support of the current system, sending a strong message that the American people oppose the nuclear option and support a fair and independent judiciary.

Feminist Majority staff at the April 6 rally. See photos!

Fourteen Democrats and Republicans in the Senate struck a deal in late May of 2005 that averted the “nuclear option” and preserved the right to filibuster judicial nominees. The deal allowed a simple majority vote on three of the most anti-women’s and civil rights judicial nominees (Priscilla Owen, Janice Rodgers Brown and William Pryor). All three were confirmed.

The deal provides for the use of filibusters against judicial nominees only in "extraordinary circumstances." “Will saving women’s lives, women’s rights, and civil rights be considered such an extraordinary circumstance?,” asked Eleanor Smeal, president of the Feminist Majority. “If the records of the three anti-women’s rights, anti-civil rights nominees who will not be filibustered under the deal are to be the standard, then these rights are in grave peril.”

The Supreme Court

Following Justice O'Connor's resignation, Senators from both parties have begun to discuss the potential impact of the so-called "nuclear option" and the deal that took it off the table in May.

Now Senators disagree about what constitutes “extraordinary circumstances.” Senator Lindsey Graham (R-SC), one of the signers of the deal to avoid the nuclear option, said on FOX News that to him, ideology would not be considered an extraordinary circumstance – rather, such a circumstance would have to be “a character problem, an ethics problem, some allegation about the qualifications of the person…” Senator Ben Nelson (D-NE), another member of the deal, agreed through a spokesperson that “ideology is not an ‘extraordinary circumstance’ unless you get to the extreme of either side,” according to the Washington Post. Senator Mary Landrieu (D-LA) believes that “a pattern of irresponsible judgment, where decisions are based on ideology rather than the law, could potentially be ‘extraordinary’,” according to a spokesperson’s interview with the Post. Senator Joseph Lieberman (D-CT), on the other hand, told the Post, “In my mind, extraordinary circumstances would include not only extraordinary personal behavior but also extraordinary ideological positions.”

Senator Joseph Biden (D-DE), a key member of the Senate Judiciary Committee, said on CBS News’ Face the Nation that the Supreme Court is a “totally different ball game” than the appellate courts.