The Nuclear-Option Genie Is Out of the Bottle

Reporting on Politics and Policy.
Nov. 21 2013 5:38 PM

The Nuclear-Option Genie Is Out of the Bottle

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Senate Majority Leader Harry Reid speaks during a news conference on Capitol Hill on Nov. 21, 2013, in Washington.

Photo by Drew Angerer/Getty Images

Thursday’s vote to restore majority rule in the Senate is politically earth-shaking. The principle that a simple majority of truly determined Senators may properly modify filibuster rules on any day—and not just on one magic day at the beginning of a new congressional term—has now been firmly established in actual Senate practice, and there is no going back. The nuclear-option genie is now out of the bottle. 

The filibuster-reform vote applies only to certain nominations—Supreme Court slots are not covered—but Friday (or any day thereafter) the Senate is free to sweep in the Supreme Court confirmation votes, or ordinary legislative votes, or anything else. When the Republicans next control the Senate—and of course one day, they will—they too will be free to insist on simple majority rule. What goes round, comes round.

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The current Democratic majority would thus be wise to allow minority Republicans very broad (but not endless) freedom of speech, as a matter of courtesy and comity; everyone should get to speak, and then all should get to vote. If the Dems govern the Senate with a kinder, gentler version of majority rule than does the House, today will rightly be seen by future Americans as one of the great days in the history of the republic. 

Oh, and by the way, you heard it here—first!—in Slate: The constitutional theory undergirding today’s vote appeared way back in January 2011, in a piece that I co-wrote with former Sen. Gary Hart. And for a more detailed discussion, see Chapter 9 of my latest book, America’s Unwritten Constitution.

Akhil Reed Amar is a Yale law professor and author of America’s Unwritten Constitution: The Precedents and Principles We Live By.

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