The Nuclear Option: How Senate Republicans May Follow Democrats’ Lead to Confirm Neil Gorsuch
Last week, the Senate Judiciary Committee held confirmation hearings for President Trump's Supreme Court nominee, Judge Neil Gorsuch. At the conclusion of the hearings, Senator Charles Schumer (D-NY) announced that he would support a filibuster against the Supreme Court nominee. This raised the question whether Republicans would use the so-called nuclear option to eliminate the filibuster for Supreme Court nominations to confirm Gorsuch. If so, they would be following in the footsteps of former Senate Majority Leader Harry Reid (D-NV), who in 2013 used the nuclear option to eliminate the filibuster for all nominations other than to the Supreme Court.
The Filibuster and the Nuclear Option
The filibuster is a mechanism by which a minority of senators can prevent an act of the Senate. Until 1917 there was no way to end a filibuster. In that year, the Senate adopted Rule XXII, which allowed a Senator to call for cloture--or an end of debate--which could only carry with two-thirds support (which would be 67 votes in today's Senate). When the Senate invoked cloture, debate would continue for no more than 30 hours. The Senate amended Rule XXII in 1975, allowing a three-fifths majority (60 votes) to invoke cloture.
The nuclear option is a procedure that can be used to eliminate the filibuster without formally changing Senate rules. Normally, changing Senate rules--like Rule XXII--is subject to debate, and that debate can only be ended by the affirmative vote of two-thirds of the Senate. The nuclear option, also known as the "constitutional option," asserts the constitutional authority of a simple majority (51 senators) to, as a 2005 Republican Policy Committee memo put it, "define Senate practices and procedures." To understand how this works, consider how the Democrats used it in 2013.
The Nuclear Option in Practice
On November 21, 2013 (see pp. S8416-S8418), then-Senate Majority Leader Harry Reid used the nuclear option to close debate on the confirmation of Patricia Ann Millett to the U.S. Court of Appeals for the District of Columbia. First, Senator Reid moved to reconsider the original cloture vote (PDF) from October 2013, which had failed to garner the necessary 60 votes. After 57 senators agreed to reconsider the motion, Senator Reid raised a point of order that "the vote on cloture under rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote."
The president pro tempore informed Senator Reid that the rule requires a three-fifths majority for cloture. In response, Senator Reid appealed the ruling of the chair (i.e., the president pro tempore) to the full Senate. At this point, Senator Mitch McConnell (R-KY) made a series of points of parliamentary inquiry, which allow a member to ask a question of the chair pertaining to Senate rules and procedures. McConnell's exchange with the president pro tempore confirmed the legitimacy of the nuclear option:
Mr. McCONNELL. It is my understanding that prevailing on appeal of the ruling of the Chair would change Senate precedent on how nominations are considered in the Senate and effectively change the procedures or application of the Senate's rules. How many votes are required to appeal the ruling of the Chair in this instance?
The PRESIDENT pro tempore. A majority of those Senators voting, a quorum being present, is required.
Mr. McCONNELL. So I am correct that overturning the ruling of the Chair requires a simple majority vote?
The PRESIDENT pro tempore. The Senator from Kentucky is correct.
When the Senate voted on the appeal, only 48 senators voted to uphold the ruling. The other 52 voted to reject it. The president pro tempore explained the significance of that vote:
Under the precedent set by the Senate today, November 21, 2013, the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority. That is the ruling of the Chair.
Senator McConnell appealed this new ruling to the full Senate. This time, the votes were reversed: 52 voted to uphold it, and only 48 rejected it. Thus, Senate Democrats had set a new precedent on ending debate on nominations other than to the Supreme Court. When the Senate voted to invoke cloture on the Millett nomination later that day, the affirmative vote of 55 senators sufficed to do so.
Conclusion
If Senate Democrats make good on their threats to filibuster Judge Gorsuch's nomination to the Supreme Court, we may see the 2013 nuclear-option drama play out in reverse. In this case, Senator McConnell would play the role that Senator Reid played in 2013, and Senator Schumer would play the role that Senator McConnell did. All of this could happen as early as next week, so stay tuned.