Republicans Invoke Supreme Court 'Nuclear Option'

Republicans Invoke Supreme Court 'Nuclear Option'
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The Senate has gone nuclear.

Republicans voted Thursday on the so-called “nuclear option” to remove the 60-vote threshold for Supreme Court nominees, paving the way for Neil Gorsuch to be confirmed by a simple majority.

The decision came after Democrats filibustered President Trump’s nomination of the appellate court judge in an attempt to block his confirmation and force Trump to nominate someone with more widespread Democratic support.

Thursday’s outcome was expected on both sides of the aisle; Democrats had made clear from the start of this week that they had the votes to filibuster Gorsuch, and Republicans insisted that he would be confirmed by whatever means necessary.

It was a blockbuster moment, marking a significant change in the way the upper chamber functions, with far-reaching implications on the future of the Senate and the Supreme Court. Yet it was done in typical Senate style:  a series of small procedural motions and roll-call votes.

The ultimate result is that Gorsuch will be confirmed no later than Friday, and all future Supreme Court justices will require just a simple majority in the Senate.

Majority Leader Mitch McConnell, in invoking the rules change, argued that it was made necessary because of Democrats’ opposition to a highly qualified nominee Republicans consider within the judicial mainstream. McConnell also argued that he was simply completing the precedent Democrats set when they changed the rules of the Senate for all executive positions and lower court nominations – though Democrats left Supreme Court nominations unchanged.

“Our Democrat colleagues have done something today that is unprecedented in the history of the Senate,” McConnell said. “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.”

Democrats pushed back, blaming McConnell for driving a change that could have been averted. Minority Leader Chuck Schumer said in a speech on the Senate floor that Democrats opposed Gorsuch for judicial, not political, reasons, and that they had offered to sit down with Trump and Republicans to find a nominee that could be confirmed with Democratic support. A procedural motion from Schumer to delay Gorsuch’s vote for two weeks failed.

 “The responsibility for changing the rules will fall on the Republicans’ and Leader McConnell’s shoulders,” Schumer said. “They have had other choices. They have chosen this one. No one forced them to act. They acted with free will. We offered them alternatives; they refused.”

Democrats also pointed out that McConnell and Republicans refused to hold hearings or a vote last year for Merrick Garland, President Obama’s nominee to fill the vacancy created by Antonin Scalia’s death. Schumer, in staging procedural objections on the Senate floor, pointed out that the Senate was not procedurally prohibited from considering Garland last year.

Both Democrats and Republicans lamented the fallout from Thursday, even though senators from both parties had been resigned to this outcome all week and made little effort to bridge the divide or ease the partisan tensions.

Perhaps surprisingly, few senators worried that Thursday’s vote, less than four years after removing the filibuster threshold on all other nominees, would grease the wheels for a potential removal of the filibuster for legislation. McConnell guaranteed earlier this week that he would not do so while majority leader.

Sen. John Cornyn, the second ranking Republican in the chamber, called the legislative filibuster “something that, on a bipartisan basis, everybody agrees to.”

But others were less certain. Sen. John McCain, who called Thursday a “dark day in the history of the United States Senate” despite voting in favor of the nuclear option, said it was a “slippery slope” toward future changes.

Sen. Ted Cruz hinted that if Democrats used the filibuster often to block Trump, it could lead to elimination of the procedure entirely.

“At this point, there is not a majority for ending the legislative filibuster,” Cruz said. “My hope is that Democrats will stop their unreasonable, across-the-board obstruction and allow the Senate to operate. If they continue an immovable blockade, I suspect the votes will shift on that question as well.”

But Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee, said she thought that despite the frustration on both sides of the aisle Thursday, the Senate could cool off during the two-week Easter recess. She said she doesn’t expect senators to retreat into partisan corners, at least not in the long term.

“We’ve been through hard times before and there’s something in the Senate that eventually drives people together because we basically want to get things done,” she said. “I think that natural – it’s not an urge, it’s the reason why we’re in this – comes forward and it all, over time, works out.”

James Arkin is a congressional reporter for RealClearPolitics. He can be reached at jarkin@realclearpolitics.com. Follow him on Twitter @JamesArkin.



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