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Senate Invokes ‘Nuclear Option’ As Gorsuch Nomination Heads To Final Vote

Nuclear Explosion

As expected, Senate Republicans, following the precedent set by Harry Reid and Senate Democrats in November 2013, invoked the so-called ‘nuclear option’ to reduce the number of votes needed to invoke cloture on Supreme Court nomination, thus guaranteeing a final floor vote on the nomination of Judge Neil Gorsuch to the Supreme Court early tomorrow evening:

WASHINGTON — Senate Republicans changed longstanding rules on Thursday to clear the way for the confirmation of Judge Neil M. Gorsuch to serve on the Supreme Court, bypassing a precedent-breaking Democratic filibuster by allowing the nomination to go forward on a simple majority vote.

In deploying the so-called nuclear option, lawmakers are fundamentally altering the way the Senate operates — a sign of the body’s creeping rancor in recent years after decades of at least relative bipartisanship on Supreme Court matters. Both parties have likewise warned of sweeping effects on the future of the court, predicting that the shift will lead to the elevation of more ideologically extreme judges if only a majority is required for confirmation.

Senate Democrats in 2013 first changed the rules of the Senate to block Republican filibusters of presidential nominees to lower courts and to government positions, but they left the filibuster in place for Supreme Court nominees, an acknowledgement of the sacrosanct nature of the high court. That last pillar was knocked down on a party-line vote, with all 52 Republicans voting to overrule Senate precedent and all 48 Democrats and liberal-leaning independents voting to keep it.

The Senate then voted 55-45 to cut off debate — four votes more than needed under the new rules — and move to a final vote on Judge Gorsuch’s confirmation Friday evening, with a simple majority needed for approval.

Lawmakers first convened late Thursday morning to decide whether to end debate and advance to a final vote on Judge Gorsuch. Republicans needed 60 votes — at least eight Democrats and independents joining the 52-seat majority — to end debate on the nomination and proceed to a final vote. Only a handful of Democrats defected, and the vote failed, 55-45, leaving Republicans to choose between allowing the president’s nominee to fail or bulldozing long-held Senate practice.

For weeks, the outcome of the Senate fight has appeared preordained, even as members lamented its inevitability as a low moment for the chamber. In recent days, faint rumblings of a deal to avert the clash had faded almost entirely.

Republicans have argued that changing the rules to push through the nomination was their only option, seeking to shift responsibility for blowing up the Senate’s longstanding practices to the Democrats. Allowing the filibuster to succeed, they said, would cause more damage than overriding Senate precedent to ensure it fails.

“This is the latest escalation in the left’s never-ending judicial war, the most audacious yet,” Senator Mitch McConnell of Kentucky, the majority leader, said after describing Democratic opposition in the past to Judge Robert H. Bork and Justice Clarence Thomas. “And it cannot and it will not stand. There cannot be two sets of standards: one for the nominees of the Democratic president and another for the nominee of a Republican president.”

But Democrats had shown no signs of forsaking their filibuster plans all week. That has pleased their most progressive voters, who have preached resistance to Mr. Trump at every opportunity, and supplied the minority party with perhaps its loudest megaphone so far under the new president.

Many Democrats remain furious over the treatment of Judge Merrick B. Garland, President Barack Obama’s nominee for the seat left vacant with the February 2016 death of Justice Antonin Scalia. Republicans refused to even consider Judge Garland during the presidential election year, a fact Mr. McConnell has not dwelled on during public statements about the history of Republican behavior under Democratic presidents.

“There must have been a hacking into his computer,” Senator Richard J. Durbin, Democrat of Illinois, said of Mr. McConnell on Thursday from the Senate floor, “because he can’t print the name Merrick Garland to include in the speech.”

At the same time, critics of Judge Gorsuch say they have identified ample reasons to oppose him, chafing at the suggestion that Democrats are merely seeking payback. They have cited concerns over Judge Gorsuch’s record on workers’ rights and whether he will be reliably independent from Mr. Trump and conservative groups like the Federalist Society, among other issues.

The entire process of invoking the ‘nuclear option’ was, in the end, rather anti-climactic notwithstanding all the rhetoric about how dramatic and fundamental a change this would be to the nature of the Senate. After the initial cloture vote failed, Senate Majority Leader Mitch McConnell went through a series of procedural step to put the issue of setting a new precedent regarding cloture votes for Supreme Court nominations while Senate Minority Leader Chuck Schumer put forward two motions, one to delay the consideration of the Gorsuch nomination until after the Senate returns from its Easter recess and the other to delay any further votes today until after 5 pm. After both of those votes failed on a largely partisan basis with only three Democrats — Joe Manchin, Joe Donnelly, and Heidi Heitkamp — voting with the Republicans to invoke cloture, McConnell formally went forward with a revised cloture vote that only needed 51 votes to pass. That vote ended up being 55-45, meaning that the Senate is now at the start of the final thirty hours of debate on the nomination. After that period ends, which will be roughly around 7 pm tomorrow evening after taking recesses into account, the Senate will hold a final vote and Gorsuch will be confirmed, most likely by the same 55-45 vote.

Once it was clear that there would not be sufficient Democratic support for the GOP to get to sixty votes on a cloture motion, it was clear that we’d get to this point. In fact, one might say that this day was made inevitable when Reid and the Democrats ended the sixty-vote rule for Executive Branch appointments and all Judicial nominations below the Supreme Court. At that point, the logic for keeping the traditional cloture rule in place for Supreme Court nominations seemed especially weak. After all, the Judicial nominations that were impacted by the Reid precedent are, with the exception of a small number of lower-level courts such as the Tax Court, subject to the same lifetime appointment that Supreme Court Justices get and the precedents that Circuit and District Court Judges set can have just as much of a nationwide impact as a Supreme Court opinion. The best examples of that can be seen in the recent actions by Federal District Court Judges in Washington State and Hawaii who imposed nationwide injunctions against enforcement of President Trump’s Muslim Travel Ban, the various Circuit Court rulings that led up to the Supreme Court’s ruling in Obergefell v Hodges finding that laws banning same-sex marriage violated the 14th Amendment, and various other Circuit Court rulings on issues ranging from gun control to civil rights. Given this, the only real argument left in favor of maintaining the sixty-vote rule for Supreme Court Justices was a sense of tradition that, as the events of November 2013, don’t seem to have the same force and effect in the Senate that it used to, In any case, the deal is done and Neil Gorsuch will be on the Court in sufficient time to participate in the final weeks of oral argument later this month, although none of the remaining cases appear to be landmark cases.

 

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Daryl's other brother Darryl says:

    Republicans invoked the Nuclear Option in 2016 when they refused to do their job.

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  2. michael reynolds says:

    The ‘conservative’ Republicans in the Senate have discredited themselves, the Senate, and the Supreme Court.

    Gorsuch will legally be a justice but he will never be legitimate. He is in possession of stolen property.

    Like or Dislike: Thumb up 0 Thumb down 0

  3. motopilot says:

    Josh Marshall has a good read on this issue:

    http://talkingpointsmemo.com/edblog/opposing-a-corrupt-transaction

    Like or Dislike: Thumb up 0 Thumb down 0

  4. teve tory says:

    Now we just need Kennedy and RBG to hang tight for 2.5 years.

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  5. Daryl's other brother Darryl says:

    Mitch McConnell has rung up quite a record for himself…as anti-American.
    The worlds most deliberative body…meh.

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  6. Jack says:

    I can’t say I disagree.

    Personally, I think they ought to nuke the filibuster for everything. Well, not completely nuke, just go back to the old rule that a Senator has to hold the floor to filibuster. The way some people have been talking you’d think the filibuster rule was carried down from Mount Horeb on stone tablets. In reality the filibuster rule that does not require the Senator to hold the floor only dates to 1975. Before that, it’s use prior to the 20th century was almost unheard of. In the 20th century, before the 1975 rule, it was mostly used [by democrats] to hold up civil rights legislation. So this idea that it’s a longstanding, revered institution is mostly nonsense.

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  7. Michael says:

    To say the Dems should have held off threatening a filibuster until the next nomination is crap. If not this time, McConnell most certainly would have invoked the “nuclear option” at that future date, if for no other reason than to shift the tilt of the Court to the right.
    This is just another example that the GOP is a minority party who can’t help themselves over reaching when they have power.

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  8. gVOR08 says:

    Everyone who thought McConnell and the Rs weren’t going to kill the Judicial filibuster at the first opportunity, raise your hand.

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  9. george says:

    This was as inevitable as the nuclear option in 2013 – when party’s are that polarized its wishful thinking to believe informal rules will be maintained.

    There was no reason not to threaten a filibuster, simply because the nuclear option would as easily happen next time as now.

    And I’d argue most people simply don’t care; they didn’t care one way or another about Garrick, they don’t care one way or another about Gorsuch. 90% of the population votes for their team, whatever they think of its leaders, in the same way they cheer their home team’s quarterback whatever they think of his character.

    I suspect almost no one’s mind is going to be changed because of this. Even in terms of legitimacy the test for most people is one of team; SCOTUS members who you agree with are legitimate, those you disagree with are illegitimate.

    The interesting thing will be to see how the members of SCOTUS themselves feel; Ginsberg and Scalia were friends, Kagan was a hunting buddy of Scalia’s; and it was entertaining to read conservatives lambasting Scalia for being friends with RGB, and to read liberals lambasting RGB for the same thing. And interesting that the two managed to respect each other despite wildly different politics. I find hope in that.

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  10. teve tory says:

    And I’d argue most people simply don’t care; they didn’t care one way or another about Garrick,

    Au contraire, I thought Deep Space Nine was the best of the Trek series.

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  11. Anonne says:

    So apparently Neil Gorsuch is worth killing the Senate’s minority protections over? Well, I can’t wait for that to haunt the GOP the next time they are in the minority.

    Doug, you are wrong to blame the Democrats for this. When the GOP became the party of obstruction, there was no choice but to change the rules. Now, the corrupt kleptocracy is in power and you want to blame Democrats. Don’t be pathetic. This is all happening because the GOP doesn’t believe in compromise or good governance. They just want their way.

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  12. Eric Florack says:

    It’s not the nuclear option. It’s the Harry Reid option.

    The Democrats own this one.

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  13. KM says:

    @Anonne :

    So apparently Neil Gorsuch is worth killing the Senate’s minority protections over? Well, I can’t wait for that to haunt the GOP the next time they are in the minority.

    On that glorious day, I sincerely hope some Democrat with balls will tell the whining GOP, on the floor and on Congressional record, “STFU, you did this to yourself”. Karma’s a bitch.

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  14. al-Alameda says:

    That last pillar was knocked down on a party-line vote, with all 52 Republicans voting to overrule Senate precedent and all 48 Democrats and liberal-leaning independents voting to keep it.

    The Senate then voted 55-45 to cut off debate — four votes more than needed under the new rules — and move to a final vote on Judge Gorsuch’s confirmation Friday evening, with a simple majority needed for approval.

    Looks like Manchin, Donnelly, and Heitkamp got a freebie ‘no’ vote on the 52-48. And probably voted with R’s to cut off debate.

    This was inevitable. Once Republicans de-facto filibustered Merrick Garland for 11 months there was no way Democrats were going to accept that as a smart political maneuver and move on to business as usual.

    I’m certain Mitch McConnell is shocked and saddened that Democrats did this to his beloved Senate. Why couldn’t Democrats just acknowledge political reality, put the Garland situation behind them, and quietly let Gorsuch go through as gesture of bi-partisanship? We’ll never know.

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  15. HarvardLaw92 says:

    All I can say is that the GOP had better pray that they don’t lose the Senate.

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