McCloud Bros.

With Senate Democrats vowing to filibuster Judge Neil Gorsuch's confirmation to the Supreme Court, the Republicans have also vowed to confirm Gorsuch by Friday night (April 7). It seems that for Gorsuch to be confirmed by this Friday, the nuclear option will have to be utilized. But what would be the result?

Nuclear Option 2.0

As I explained in a previous post, the nuclear option is a way to change Senate rules using a simple majority--51 votes. Senator Chuck Schumer (D-NY) and Senate Democrats used it in 2013 to bypass a Republican filibuster of a D.C. Circuit Judge. For lower court confirmations, cloture only requires a simple majority now. To invoke cloture for a Supreme Court nominee though still requires 3/5 of the whole Senate--60 votes.

If Senator Mitch McConnell (R-KY) and the Republicans use the nuclear option to end debate and bypass the Democrats' filibuster, it will have long-lasting effects on confirmations. Each time another party gains a majority in the Senate and wins the White House, they will be able to fill every vacancy with impunity. Even a 50-50 split won't matter as long as the majority party in the Senate also controls the White House, as the Vice President could then cast the tie-breaking vote.

If the nuclear option is used this week, it may well spell the end of the filibuster completely. Senators can, and could, still use the filibuster to stop legislation if the nuclear option is used. However, in this hyper-partisan time, what's to stop a majority party from using it to force a controversial law through?

Fallout: Beyond Gorsuch

Alexis de Tocqueville warned against the tyranny of the majority in his book Democracy in America. It is a very real fear that with each use of the nuclear option, we will move closer to majoritarian dominance over every aspect of Senatorial business. Some may say, "Well, that's how a democracy works; the majority rules." But the minority has always had a way to slow the process and perhaps stop the Senate from acting in a certain manner. To push confirmations into the realm of majoritarianism is a dangerous step that might wind up eliminating the filibuster altogether.

All that said, it is likely the Republicans will use the nuclear option. Joshua and I will be live blogging the confirmation vote, which is expected to be on Friday, April 7. There are sure to be fireworks on the Senate floor, so join us for the fun.