Senate triggers “nuclear option” to confirm Neil Gorsuch

Such lovely news to awake to in New Zealand: CNN and The New York Times both report that the Senate voted along party lines to break the Democratic filibuster of proposed Supreme Court Justice Neil Gorsuch, invoking the “nuclear option.”

That option allows a filibuster (Democratic, in this case) to be stopped with a mere 51 instead of the previous 60 votes, and to do that, Republicans had to change the longstanding Senate rules.  They could do both since they hold a majority in the Senate.

What this means is that in the future the majority party can simply confirm all nominees by majority vote, something the filibuster-breaking rule was designed to prevent (the Senate wanted more than a majority consensus on crucial legal issues). And I think the Democrats were justified in trying to block Gorsuch’s nomination in view of the reprehensible way Republicans treated Obama’s nominee Merrick Garland.

The Democrats might be said to have lost credibility on this issue since they themselves used the nuclear option several years ago—but for lower-court judges. The Times reports:

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 acknowledgment of the sacrosanct nature of the high court. That last pillar was knocked down [with yesterday’s vote] 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.

To see how the Senator voted on both the filibuster and the “nuclear option,” go here.

Upshot: Gorsuch will be confirmed on Friday, making the Supreme Court conservative for years to come. Expect Roe v Wade to be weakened, and maybe even some sneaking in of creationism in public schools. The Republicans had no right to block Garland’s nomination, and they deserved the filibuster. And the nuclear option should not be exercised in the appointment of any federal judges, as it helps prevent courts that rule on ideology rather than the law. (Of course that is already the case with the Supreme Court, as we saw in the 2000 vote on Bush v. Gore.)

52 Comments

  1. Rita
    Posted April 6, 2017 at 2:46 pm | Permalink

    I’m saving this chart for the time when Indiana Dems will be able to run an actual Democrat against Joe Donnelly.

  2. jwthomas
    Posted April 6, 2017 at 3:06 pm | Permalink

    Blame whomever you want but Gorsuch will be approved. And with Senate rules changed the Reps will easily ram through future appointments with just 51 votes. IMO the Dems have shot themselves in the foot by yielding to pressure from their base. They’re gambling on retaking the Senate next year
    when that’s by no means certain and not necessarily likely.

  3. Mark Sturtevant
    Posted April 6, 2017 at 3:07 pm | Permalink

    A basic question for someone: I keep hearing how this is ‘forever’. But can’t they later vote to reinstate the old rules? Or is that now impossible?

    • Historian
      Posted April 6, 2017 at 3:10 pm | Permalink

      In theory, the answer is yes. But, in practice, it is unlikely to happen. The party in power would have no incentive to do so. The filibuster could only serve to obstruct its agenda.

      • rickflick
        Posted April 6, 2017 at 5:36 pm | Permalink

        Although, it seems to me, if the majority party sees an inevitable switch coming up in the next election( I think this happens routinely), it could reinstate the rule to block the new majority. It seems to me the filibuster entails the concept of forcing accommodation which is a laudable goal and should be codified in the constitution somehow to avoid a ridiculous seesaw of the rule.

        • tomh
          Posted April 7, 2017 at 9:27 am | Permalink

          And then the majority party could switch it back. The filibuster is dead for appointments, and likely will soon be for legislative action as well. The filibuster will be an artifact of history soon.

    • Ken Kukec
      Posted April 6, 2017 at 4:54 pm | Permalink

      It’s difficult to imagine a scenario in which 51 senators in the majority would vote to cede power from themselves and grant it to 41 senators in the minority, which is what the traditional filibuster does.

  4. Historian
    Posted April 6, 2017 at 3:07 pm | Permalink

    The filibuster has been supported or opposed by the two parties when it served their purposes. With the filibuster now gone for judicial nominees (including a Supreme Court nominee), the total abolition of the filibuster for legislation is a possibility. The total abolition of the filibuster would certainly make the Senate more democratic in the sense that votes would now be settled by simple majorities as opposed to the 60 needed to break a filibuster. The question is whether such a situation would be good for the country. Under this scenario and with strict party line voting, the Republicans would be able to push through any legislation they would want since they control the Senate, the House, and the presidency. Thus, the radical right agenda could become law, which is frightening to say the least. So, perhaps some restriction on a pure majoritarian system would not be a bad thing, even at this risk of progressive legislation being blocked, which was routine under Obama.Under Obama, Republicans loved the filibuster and Democrats hated it. Now the situation is reversed. It’s a tough call to make.

    For those interested in a short history of the filibuster in the Senate, follow this link.

    https://www.brookings.edu/testimonies/the-history-of-the-filibuster/

    • Randy schenck
      Posted April 6, 2017 at 3:41 pm | Permalink

      Also like to point out – if it is democracy we are looking for we sure as heck would not have 2 Senators per state. What we have is a travesty. The constitution needs a great deal of overhaul and this is just one.

      • Historian
        Posted April 6, 2017 at 4:22 pm | Permalink

        A strong case can be made that because the Senate is so unrepresentative due to the two senators to a state clause in the Constitution that the provision should be rectified by a constitutional amendment, which would make Senate apportionment based more on the population of the various states. But, because the Republicans control most state legislatures, such an amendment is nothing more than a liberal pipedream. Like it or not, we are stuck with the Senate as it is for the foreseeable future. Any likelihood of a change in the Constitution in this area is in the remote future, if ever at all.

        • Randy schenck
          Posted April 6, 2017 at 4:44 pm | Permalink

          I agree, we will not see any of the changes needed for a long time but many are clearly needed. Nothing holds up for 230 years without updates and rewrites. Jefferson expected it should be done over every 19 years – about every generation. My thought on the senate would be something like one senator for 5 million or less. So several states would get one. 2 if 5 million to 10 million. California, under this plan would get 7, soon to be 8. It does not need to be done just like the house and we don’t necessarily need 435 senators. I think this method would be far more representative and take the air out of the republicans in the senate. Everyone in the state gets to vote for senate, not all this little sliced off pieces the republicans control. Of course, at the same time we need to kill the electoral college, install public financing of elections, thus, eliminating private money of any kind – just for starters.

    • Posted April 6, 2017 at 3:42 pm | Permalink

      I think we can already get a very good preview of what it’ll be like…simply by looking at executive orders.

      Past presidents and the current Resident have made all sorts of sweeping changes with the stroke of a pen — with most of them being reversing the changes made by their immediate predecessor.

      The supermajority of the Senate served as something of a viscous lubricant. Stuff wasn’t likely to happen unless it was something everybody could tolerate for the long term — and then we tended to stick with it.

      Now, it’ll be a game of ping-pong. One year, the Republicans will slam through concealed carry for drug-addicted psychopaths; the next, Democrats will repeal it and slam through Medicare for all.

      …except that the Republicans are going to have a much harder time repealing the big, sweeping populist things the Democrats will pass this way than the Democrats will repealing tax cuts for billionaires….

      Cheers,

      b&

      • Posted April 7, 2017 at 11:57 am | Permalink

        I wish I was this optimistic. I have no love of the Democrats, but they are at least somewhat less hypocritical. I can see this coming back as “of course, this situation is different” for some bogus reason when the rules work in the opposite direction’s favour.

  5. Posted April 6, 2017 at 3:10 pm | Permalink

    From Brian Beutler in The New Republic: “Having stolen an appointment that rightly belonged to Obama, Republicans now bemoan that Democrats won’t sanctify that theft by handing the goods to President Donald Trump and Neil Gorsuch.”

    • jwthomas
      Posted April 6, 2017 at 3:12 pm | Permalink

      Except that they’ve now done that already.

      • eric
        Posted April 6, 2017 at 3:36 pm | Permalink

        How are you blaming the dems for this? They just got outvoted.

        The Senate held a vote on Gorsuch, and it went 55-45 with three Dems (serving in red states) voting to confirm. That didn’t meet the 60-vote requirement, so then McConnell held a vote on a rule change, and it went 52-48 straight down party line. Now with the rule change, he’ll hold the confirmation vote again tomorrow, and if all goes as expected, Gorsuch will get the exact same 55-45 result as before, only this time it will count as a confirmation under the new rules.

        • jwthomas
          Posted April 6, 2017 at 4:13 pm | Permalink

          My point was that by filibustering now and forcing the Reps to trigger the “Nuclear Option” the Dems made it easier for the Reps
          to gain approval for whomever they want when future SCOTUS vacancies occur. Gorsuch was going to be
          approved anyway and the filibuster was just short sighted grandstanding to their liberal base.

          • Historian
            Posted April 6, 2017 at 4:27 pm | Permalink

            I disagree. If the Republicans had not needed to use the nuclear option for Gorsuch, they would have used it for any future nominee. The Democrats had nothing to lose by using the filibuster. In the future, when the Democrats regain power, they cannot be blamed for ending the filibuster.

            • Posted April 6, 2017 at 4:46 pm | Permalink

              Exactly. The two axes are entirely orthogonal.

              McConnell made clear from the get-go that Gorsuch was going to get confirmed, whatever the cost. That was the final end of the filibuster; the rest is just procedure documenting the demise. No future filibuster would have succeeded. Even if Democrats backed down for Gorsuch, it wouldn’t have saved the filibuster, because it was already dead — along with comity, of which the filibuster itself was merely a quaint symbolic fig leaf.

              It may well have been the Democrats driving the bus a couple years ago when they stabbed the filibuster in the chest…but, today, the Republicans are behind the wheel and they’re the ones who delivered the deathblow. After, of course, beating the victim senseless with Garland….

              Cheers,

              b&

              >

              • Ken Kukec
                Posted April 7, 2017 at 8:45 am | Permalink

                I like to think of myself as the bull-goose metaphor mixer around these parts, Ben, but I may have to pull over to the side of the road, strip off my crown, and pass you the mantle for that last paragraph of yours. 🙂

  6. Randy schenck
    Posted April 6, 2017 at 3:17 pm | Permalink

    I don’t see it as such a big deal. 60 percent, 50 percent, 2/3rds majority. Let the party in power make the meal and then live or die with it. The facts in most red states are, it is damn near impossible to get medical service if you are a female. Whether it is an abortion, contraception, you name it. As long as enough women vote with the old white guys and many people don’t even go out and vote, this is what you get. Again, people get what they vote for.

    • bluemaas
      Posted April 6, 2017 at 4:55 pm | Permalink

      Yes, at least in the United States, Randall, people do: people do get for what they vote.

      And that is the very reason — — and since a portion of that electorate, that is of the far, far too many lemmings who are its female ones … … still after decades and centuries of their own alleged “freedoms” … … vote against their very own long –, long – term interests — — as to why I placed with Dr Coyne the election result wager back in mid – 2016, that I did.

      We voters, including .for. the thinkings and the .lasting. judicial rulings of Judge Gorsuch … … which seem to be “wanted” ones, did this per New Republic Senior Editor, Mr Jeet Heer:

      http://www.newrepublic.com/article/141803/trumps-patriarchal-counter-revolution.

      I will be long, long, long dead before there is a feminine – led society. Here on the North American continent or, as re the majority – wise of the World’s countries, anywhere else.

      IF .at all. afore the entire Dot’s totally demolishing demise.

      Blue

  7. Simon Hayward
    Posted April 6, 2017 at 3:19 pm | Permalink

    Nate Silver has a piece on this at fivethirtyeight:

    http://preview.tinyurl.com/mqkaupa

    He questions who benefits more in the long term – his thesis being that the filibuster has been predominantly used to prevent progressive legislation (civil rights era stuff being a case in point) and maintain the status quo.

    Apparently the median party switch time for the senate is six years. He thinks a switch is unlikely next time and possible the time after, depending on the presidential election.

    • Ken Kukec
      Posted April 6, 2017 at 5:26 pm | Permalink

      The senate filibuster was the cudgel by which the South beat back civil-rights legislation for nearly a century following the Civil War.

      It took all LBJ’s wiles, and all the historical momentum the Movement could muster, to overcome a record 72-day filibuster Southern senators waged against the Civil Rights Act of 1964.

  8. Ken Kukec
    Posted April 6, 2017 at 5:08 pm | Permalink

    This was a fait accompli the moment Gorsuch’s nomination was announced.

    If we were to strain to find some silver lining, it would be that, had the Democratic filibuster been sustained, the next nominee sent up The Hill by Trump likely would have been even worse.

    The immediate effect of Garsuch’s confirmation will be to return the Court to the status quo ante preceding Scalia’s death, since there’s unlikely to be much daylight between their voting records.

    One thing you’ve got to hand the Republicans: they play for keeps.

  9. Curt Nelson
    Posted April 6, 2017 at 5:12 pm | Permalink

    It bugs me that the media basically puts the blame for this with both parties – Harry Reid started it! It was the Republicans who started it, by filibustering EVERYTHING Obama tried to do.

    And then the Democrats triggered the nuclear option by filibustering Gorsuch? No, it was the Republicans who decided that a filibuster, which is common, had to be answered with the nuclear option.

    The Republicans are 97% to blame for this.

    • Mark Sturtevant
      Posted April 6, 2017 at 5:28 pm | Permalink

      I was going to bring this up. Yes the Dems had created a precedence of a sort by stopping the need for supermajority votes on lower court judges and so on, but that was in response to an incredible # of filibusters mounted by the Republicans during Obamas’ first term.

      I think it would have been best if the Dems just stood down on this, and let Trumps’ damn nominee go through. It sucks, but they were going to get it either way.

      • Ken Kukec
        Posted April 6, 2017 at 6:10 pm | Permalink

        Everyone knew how this was going to end.

        The Democrats’ filibuster was simply the means for venting their frustrations over the Garland obstructionism — the “the sigh of the oppressed creature, the heart of a heartless world, and the soul of soulless conditions,” as one of the Marx brothers might’ve put it.

        • rickflick
          Posted April 6, 2017 at 6:53 pm | Permalink

          Yet Dems could have done nothing less. In changing the rule the GOP could have done nothing worse.

  10. Stephen Barnard
    Posted April 6, 2017 at 6:09 pm | Permalink

    I just hope Ruth Bader Ginsberg is eating her vegetables.

    • Ken Kukec
      Posted April 6, 2017 at 6:13 pm | Permalink

      I’d gladly donate an organ if she needed it.

      • Posted April 7, 2017 at 1:34 pm | Permalink

        Makes a good sci-fi plot! Justices living forever by gradual replacement of their bodies using donations from self-sacrificing supporters.

    • rickflick
      Posted April 6, 2017 at 6:51 pm | Permalink

      The probabilities are against her. I’m thinking one more Gorsuch or worse in the next 4 years. Brace yourself.

  11. Jonathan Livengood
    Posted April 6, 2017 at 7:37 pm | Permalink

    “The Democrats might be said to have lost credibility on this issue since they themselves used the nuclear option several years ago—but for lower-court judges.”

    One might say this. But I don’t think it should be anyone other than a Republican. There was a very good reason for the Democrats to nuke the filibuster for judicial confirmations: the Republicans were obviously, *hilariously* abusing it. According to Politifact [1], prior to 2009, a total of 68 judicial nominees were blocked by filibuster; whereas, between 2009 and the Democratic nuking in 2013, 79 nominees were blocked by filibuster. Let that sink in a bit. Then recall that the Republican Senate refused to even hold a hearing on Garland. And then tell me that the Democrats have lost credibility.

    [1] http://www.politifact.com/truth-o-meter/statements/2013/nov/22/harry-reid/harry-reid-says-82-presidential-nominees-have-been/

    • David Duncan
      Posted April 7, 2017 at 12:40 am | Permalink

      What about the Democrats blocking 10 Bush appointies in 2005? It took the bipartisan Gang of 14 to stop that.

      • Jonathan Livengood
        Posted April 7, 2017 at 2:49 am | Permalink

        At first blush, it seems bad. [1] But do you think 10 is similar to 79? I think those numbers are staggeringly different given the history. Moreover, as you point out, there was a bipartisan move to rein in the obstruction under Bush (and avoid the nuclear option). Why was there no bipartisan effort to rein in the much larger amount of obstruction during the Obama administration? I also think it’s worth pointing out the difference in tolerance in the two cases. After ten filibusters, the Republicans threatened the nuclear option, resulting in a bipartisan agreement to (essentially) stop filibustering judicial nominees. The Democrats went to the nuclear option after nearly *eight times* as many filibusters.

        [1] I say it seems bad at first blush because I’m not sure, when the number is 10, whether there was good reason for some or all of them to be blocked. Even the Gang of 14 didn’t stop some of Bush’s nominees from being blocked (e.g., Henry Saad and William Myers), so presumably, those nominees were unreasonable choices in some way or other — either too extreme or not well qualified or both. I’d have to go back and look closely at the cases to know for sure.

  12. Barbara Radcliffe
    Posted April 7, 2017 at 7:49 am | Permalink

    Why is this called the ‘nuclear option’? Sorry, but from the Antipodes, I’d not previously heard the term.

    • Stephen Barnard
      Posted April 7, 2017 at 8:54 am | Permalink

      The “nuclear option” is a metaphor for an action so extreme it’s appalling even to consider. The only action more extreme is the “thermonuclear option”.

  13. BJ
    Posted April 7, 2017 at 9:42 am | Permalink

    Unbelievable. I never thought they’d do it. The Dems didn’t do it for Garland because they knew that the second the other party controlled the Senate, they could use the new rule as well. Repubs probably know they won’t lose the Senate next election, but they will eventually, and they will come to regret this decision.

    • Stephen Barnard
      Posted April 7, 2017 at 9:55 am | Permalink

      The Democrats never had the chance to use the nuclear option with Garland because they didn’t control the Senate and therefore had to power to change the rules.

      • rickflick
        Posted April 7, 2017 at 10:00 am | Permalink

        It seems strange to me that the filibuster rule can be changed by a simple majority. If anything, I’d think a rules changes should require a degree of consensus in order to achieve stability. Note that, to change the constitution you need to jump through hogs heads of real fire.

      • Stephen Barnard
        Posted April 7, 2017 at 10:05 am | Permalink

        *no* power

      • BJ
        Posted April 7, 2017 at 4:35 pm | Permalink

        You’re right. I was thinking of when they threatened to due to obstruction previous to the 2006 elections. Still, the point stands about why they didn’t do it.

    • tomh
      Posted April 7, 2017 at 10:10 am | Permalink

      “they will eventually, and they will come to regret this decision.”

      Why would they regret this decision? The option is always open to the majority party, so even if they reverse it, anticipating a Dem majority, the Dems can bring it back. Filibusters are a dead issue.

      • rickflick
        Posted April 7, 2017 at 10:40 am | Permalink

        What’s likely, I think, is that the courts will become more divided than they already are. With no way to stop the majority, they can appoint radical justices who have promised any number of things to the president, including specific rulings on specific cases. Need rulings for corporations, or voter suppression, just get one. If you want someone to overturn Row vs Wade, you don’t have to coyly get someone who is likely to cast your way, but who won’t actually say so publicly. You can pick someone who publicly promises to do it.

        • tomh
          Posted April 7, 2017 at 10:48 am | Permalink

          Those things have been happening for years. Filibustering has always been merely a delaying tactic, most prominently used against civil rights legislation, with seldom any lasting effect. As for judges publicly proclaiming their views, rather than hiding them as Gorsuch did, I see nothing wrong with that.

        • BJ
          Posted April 7, 2017 at 4:36 pm | Permalink

          As TomH said, administrations on both sides have been appointing radical justices (though usually to lower courts) for years, and filibustering has taken place many a time.

      • Ken Kukec
        Posted April 7, 2017 at 12:44 pm | Permalink

        The filibuster’s dead for judicial confirmations, but not for legislation. No senator wants to go there.

        • tomh
          Posted April 7, 2017 at 1:29 pm | Permalink

          “No senator wants to go there.”

          Not until some of their pet projects are stymied and they remember how easy it was to get around the filibuster. No reason it’s not coming for legislation. For one thing, they’ll realize that when the majority changes, the other side will likely do it. They might as well do it first.

          • Ken Kukec
            Posted April 7, 2017 at 2:08 pm | Permalink

            Senators prize the ability to check the will of the majority more than they do any of their own pet projects. They also tend to hang around a long time and to have a sturdy institutional memory. It’s one thing to sacrifice the filibuster for judicial nominations; quite another to give it up for any damnfool idea that might appeal to a bare majority of their colleagues.

            Without the filibuster, the Senate wouldn’t be the Senate anymore, just the House, with longer terms and fewer members.

            • tomh
              Posted April 7, 2017 at 2:10 pm | Permalink

              I salute your optimism.

              • BJ
                Posted April 7, 2017 at 4:37 pm | Permalink

                Indeed, but if the optimism were warranted, we wouldn’t be in this position.


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