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While browsing through a FiveThirtyEight's interactive article, Tracking Congress In The Age Of Trump, I came across the Senate vote on whether to trigger the 'nuclear option'. However, the question seems to be phrased in the opposite way than what I expected.

Actual question that the Senate voted on:

Whether to keep the Senate cloture requirement for Supreme Court nominees at 60 votes

So, I'm just curious, why is the question not asked in this way:

Whether to remove the Senate cloture requirement for Supreme Court nominees at 60 votes

Is there any benefits to ask it in a way that Senators have to vote 'Nay' to trigger the 'nuclear option'? Or is it purely coincidental and doesn't have much significance?

Also, this seems to be the only bill/nomination that Trump opposes due to the phrasing of the question:

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It's an appeal of the Parlimentarian's ruling that cloture requires 60 votes.

As per Robert's Rules, "in stating the appeal, the presiding officer uses the form, "Those in favor of sustaining the decision of the chair...". (Cited indirectly via Wikipedia's article on the appeal)

You can read the transcript of how it happened in the Congressional Record (here's a very nicely formatted pdf version). I'll summarize it here:

Mr. McCONNELL: Madam President, our Democratic colleagues have done something today that is unprecedented in the history of the Senate. Unfortunately, it has brought us to this point. We need to restore the norms and traditions of the Senate and get past this unprecedented partisan filibuster. Therefore, I raise a point of order that the vote on cloture, under the precedent set on November 21, 2013, is a majority vote for all nominations.

The PRESIDING OFFICER: The precedent of November 21, 2013, did not apply to nominations to the Supreme Court. Those nominations are considered under plain language of rule XXII. The point of order is not sustained.

Mr. McCONNELL: Madam President, I appeal the ruling of the Chair.

The PRESIDING OFFICER: The Democratic leader.

Mr. SCHUMER: Madam President, parliamentary inquiry.

The PRESIDING OFFICER: The Democratic leader will state the parliamentary inquiry.

Mr. SCHUMER: Madam President, did the Senate precedent established on November 21, 2013, on how nominations are considered in the Senate change the cloture threshold for nominations to the Supreme Court?

The PRESIDING OFFICER: The consideration of nominees to the Supreme Court of the United States was unaffected by the precedent of November 21, 2013, and is as under rule XXII.

Mr. SCHUMER: Madam President, a second parliamentary inquiry.

The PRESIDING OFFICER: The Democratic leader will state the parliamentary inquiry.

Mr. SCHUMER: Madam President, in the history of the Senate, have there been any instances in which a nomination to the Supreme Court was withdrawn after cloture was not invoked on the nomination?

The PRESIDING OFFICER: The Secretary of the Senate's office has confirmed that such a withdrawal has taken place.

Mr. SCHUMER: Thank you, Madam President. Madam President, a parliamentary inquiry.

The PRESIDING OFFICER: The Democratic leader will state the parliamentary inquiry.

Mr. SCHUMER: Madam President, of the last 26 nominations of Justices confirmed to the Supreme Court, going back to 1954, how many were confirmed without a rollcall vote or received more than 60 votes in support of their nomination either on cloture or on confirmation?

The PRESIDING OFFICER: The Secretary of the Senate's office confirms that 25 of 26 nominees were confirmed in one or another of the manner so described.

[A motion to adjourn fails.]

The PRESIDENT pro tempore: The question is, Shall the decision of the Chair stand as the judgment of the Senate?

Mr. McCONNELL: Mr. President, I ask for the yeas and nays.

The PRESIDENT pro tempore: Is there a sufficient second? There appears to be a sufficient second. The clerk will call the roll. The legislative clerk called the roll.

[The vote happens]

The PRESIDENT pro tempore: The decision of the Chair does not stand as the judgment of the Senate.

  • The senate doesn't use Robert's Rules. That's still good context (showing that this is a common approach to procedure), but the reference is misleading. – fectin Jan 20 '18 at 18:13
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Back in 2013, when the Democrats first invoked the "nuclear option", I answered a similar question as follows:

A point of order is a parliamentary motion used to remind the body of its written rules and established precedents, usually when a particular rule or precedent is not being followed. When a senator raises a point of order, the presiding officer of the Senate immediately rules on the validity of the point of order, but this ruling may be appealed and reversed by the whole Senate. Ordinarily, a point of order compels the Senate to follow its rules and precedents; however, the Senate may choose to vote down the point of order. When this occurs, a new precedent is established, and the old rule or precedent no longer governs Senate procedure. Similarly, it is possible to raise a point of order and state that the standard procedure of the Senate is actually different from what the current rules and precedents suggest. If this point of order is sustained, a new precedent is established, and it controls Senate procedure thenceforth. (Wikipedia)

This is how it played out. Specifically:

  1. Senator Reid raised a point of order.
  2. The point of order was ruled invalid by the chairman, because it wasn't the rule.
  3. Reid appealed the ruling to the full senate.
  4. The senate as a whole voted 48-53 to fail to uphold the chairman's ruling.
  5. The chairman (as required) declared that this introduced new precedent such that that Reid's point of order was now the rule to use going forward.
  6. Senator McConnell raised a point of order that the existing rules prevented exactly this.
  7. The senate as a whole voted 52-48 to sustain the chair's ruling that new precedent was set.

This time around, as K-C already answered, the procedure was almost exactly the same:

  1. Senator McConnell raised a point of order.
  2. The point of order was ruled invalid by the presiding officer, because it wasn't the rule.
  3. McConnell appealed the ruling to the full senate.
  4. The Senate as a whole voted 48-52 to fail to uphold the presiding officer's ruling.
  5. The presiding officer (as required) declared that their previous ruling was now overturned and proceeded to effectively (if not explicitly) set new precedent.

The key here, in both cases, is that the presiding officer is required to enforce the rules as they currently exist, but any decision they make can be appealed to the whole Senate. The reason a "Nay" vote is required to change the rules this way, is because the Senator casting it is saying "No, I don't like the existing rule". Effectively, it's not a vote to change the rules - it's a vote that the current rules are just wrong. The fact that doing so changes the rules is just a (intended) side effect.

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