Senate Invokes ‘Nuclear Option’ As Gorsuch Nomination Heads To Final Vote
As expected, Senate Republicans invoked the so-called 'nuclear option' to move the nomination of Judge Neil Gorsuch forward to a final vote on Friday.
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.
Republicans invoked the Nuclear Option in 2016 when they refused to do their job.
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.
Josh Marshall has a good read on this issue:
http://talkingpointsmemo.com/edblog/opposing-a-corrupt-transaction
Now we just need Kennedy and RBG to hang tight for 2.5 years.
Mitch McConnell has rung up quite a record for himself…as anti-American.
The worlds most deliberative body…meh.
I can’t say I disagree.
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.
Everyone who thought McConnell and the Rs weren’t going to kill the Judicial filibuster at the first opportunity, raise your hand.
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.
Au contraire, I thought Deep Space Nine was the best of the Trek series.
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.
It’s not the nuclear option. It’s the Harry Reid option.
The Democrats own this one.
@Anonne :
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.
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.
All I can say is that the GOP had better pray that they don’t lose the Senate.
OT, but Nunes just recused himself from the Senate Intelligence Committee’s Russia investigation.
This is the Harry Reid option. The Democrats own this.
Maybe nobody recalls when the usual suspects we’re praying Senate Democrats for going nuclear?
http://www.cnn.com/2013/11/21/opinion/kohn-nuclear-option-filibuster-rules/index.html
Maybe nobody remembers Senator Warren?
@teve tory:
I stand corrected; and Garrick is definitely one of the most interesting characters in the Star Trek universe.
I was one of a dozen people who tried to tell someone here that there was no “saving this weapon for next time”. For my troubles, I was called naive, and it was said I didn’t know anything about politics. So here’s an interesting tweet this morning from Dave Weigel:
Maybe I wasn’t the clueless one after all.
@george: 😀
@Eric Florack:
But Republicans did it….
@HarvardLaw92:
I suspect that for years everyone in the Senate has sensed that none of the old gentlemen’s agreements were going to last. I suspect the GOP reasoning is that if they don’t nuke it, then the Dems will when they inevitably take control of the Senate (senators tend to be pretty corrupt/sleazy/selfish etc, but most of them are very astute politically – and most have been in power for a fairly long time, long enough to know that control shifts back and forth).
@Eric Florack: “It’s not the nuclear option. It’s the Harry Reid option.”
Harry Reid only got rid of the lower-court filibuster after Republicans used it for the 79th consecutive nominee. McConnell got rid of the SCOTUS filibuster after democrats used it once.
Maybe you don’t understand the difference, but people with at least average IQs do.
@Eric Florack: Actually, it is Mitch McConnell’s baby – from back in 2005 when he effectively killed it. This was just the pronouncement of death.
It you can’t use a procedure, it doesn’t actually exist as a procedure. And ever since then, no one has been ab;e to use the filibuster because its use would be countered with its removal.
@Eric Florack: Republicans were threatening to employ the nuclear option back in 2005. It is not all about Harry Reid. It is about tit for tat and here is where we ended up. I mostly blame the Republicans because of Garland. They did not have to vote for him. There was no reason to stonewall him. And it was inevitable that Democrats would react the way they did.
The most important thing here is that the Democrats fought to avenge Judge Garland’s and President Obama’s sacred honor. Nothing else comes close in importance.
@george:
Truthfully, IMO the future of the US is going to be a race to the bottom. The morons outnumber the smart people and they’re running the show now. The US has become Idiocracy reimagined as a reality show.
“Don’t forget to tune in tomorrow to see just how much dumber things can get!” will end up being the American epitaph.
I’m just thankful that we decided to leave when we did.
@Bob The Arqubusier: No….what they effectively said was: “Fight’s on Biyaatch!”
@James Pearce: it was set up ready to go by the Democrats. Do you think for a minute that had Hillary Clinton won the presidency then it wouldnt have been used?
“I’m just thankful that we decided to leave when we did.”
As are we, though we haven’t detected much difference.
“Gorsuch will legally be a justice but he will never be legitimate.”
That’s funny, his vote will count one.
“I’m just thankful that we decided to leave when we did.”
As are we, though we haven’t detected much difference.
“Gorsuch will legally be a justice but he will never be legitimate.”
That’s funny, yet his vote will count one.
@teve tory:
Yeah, except your facts are wrong here. Reid invoked cloture 79 times, but very few of those judges were actually filibustered. At least half those cloture votes weren’t taken because no one wanted to filibuster. In this thing called reality, the Republicans actually filibustered 11 Obama nominees. This 79 numbers comes from Reid’s office selected two pages of a CRS report on filibustering.
Moreover, history did not start in 2009. This business of blocking judicial appointments really got rolling under Bush. There have only been 16 prior failed clotures of judicial nominees, according to the Congressional Research Service. Ten of those were the 108th Congress trying to put Bush’s judicial nominees past the 2004 election. And they filibustered 14 of his judicial nominees. Yeah, I know. It’s reasonable when Democrats do it and evil when Republicans do it.