When President Donald Trump told Senate Majority Leader Mitch McConnell it was okay to “go nuclear” to get his Supreme Court nominee confirmed, he wasn’t referring to bombs. Instead, he advised getting rid of the time-honored Senate tradition of cloture.
On Tuesday night, Trump introduced Judge Neil Gorsuch as his choice to fill the long-vacant seat on the Supreme Court. The associate justice position has been open for nearly a year since the death of Antonin Scalia.
Shortly after Scalia’s passing, then President Barack Obama nominated Judge Merrick Garland to the high court. However, Republicans refused to meet with him, let alone hold hearings or confirm him, claiming the responsibility should be left to the next president. It was a gamble that the next president would be a Republican, and thus allow the party to keep the 5-4 conservative majority it had on the Supreme Court with Scalia.
Democrats howled about the refusal, but could do nothing to force the Republicans’ hand and bring Garland up for a vote because they didn’t control the Senate. They still don’t. The one option left open to them ‒ a filibuster preventing the upper chamber from attaining 60 votes for cloture and bringing the nominee to a vote ‒ is in danger of disappearing if the GOP decides to go nuclear.
“If we end up with that gridlock, I would say, if you can, Mitch, go nuclear,” Trump told reporters on Wednesday. "It's up to Mitch, but I would say go for it."
GO NUCLEAR
Taking things to the absolute extreme in order to avoid a series of small escalations. This can be a way of winning a fight you might not otherwise win, but has the potential to destroy both people involved.
The filibuster is already an endangered species in the Senate. In 2013, when they were the majority, Senate Democrats pushed through a reform which eliminated filibusters when it came to judicial nominees and executive office appointments, in a move they hoped would fix a broken system.
Ironically, it has prevented them from having much of a chance to torpedo Trump’s nominees for his Cabinet and other positions because confirmations require only a simple majority of 51 senators, rather than a 60-vote approval of cloture.
Cloture ‒ the legislative procedure for ending a debate and allowing the vote ‒ still exists for normal Senate proceedings. The GOP only holds 52 seats in the upper chamber, so the party requires eight Democrats to cross the aisle to vote for cloture and end any debates (including a filibuster). It’s a procedure that has never existed in the House of Representatives, which is ruled by a simple majority, meaning the Democrats have very little power to do anything in the lower chamber.
It’s hard to say whether McConnell, a noted institutionalist, will invoke the nuclear option ‒ or if the Kentucky senator will even need to. Democratic senators in traditionally red states or states that flipped and voted for Trump who are up for reelection in 2018 may capitulate and vote for cloture on Gorsuch as a matter of pragmatism.
Yet those ten vulnerable Democrats could also choose to roll the dice on Gorsuch the way that Republicans did on Garland, seemingly without repercussions from voters.
“You’ve got, obviously, people like Senator Manchin in West Virginia, people like Senator Tester out in Montana who are in tough, red states or states where they need to think about this question, but I really think the thing to look at is the Republicans paid absolutely no price for not giving Merrick Garland a vote last year,” David Bernstein, a Democratic strategist told RT America’s Ed Schultz. “There’s no reason to think that the Democrats will pay any price for doing the same thing.”
The White House, pressing for a quick confirmation, ignored the precedent Trump’s own party set with Garland, and instead focused on Obama’s previous nominations and the fact that Gorsuch had been approved for the federal appeals court via a voice vote in 2006. The president expects that his nominee will be confirmed by a “large, bipartisan vote,” press secretary Sean Spicer said on Friday.
Going nuclear isn’t McConnell’s only option, according to a report from the conservative think tank the Heritage Foundation from earlier in January. Instead, he could strictly enforce Rule XIX of the current Standing Rules of the Senate, known as the “two-speech rule.” It requires the Senate to stay in the same legislative day ‒ meaning it doesn’t adjourn for any reason ‒ until all dissenting lawmakers have made two speeches on the Senate floor and thus have exhausted their ability to speak out against the nominee. Once that happens, only a simple majority is needed to bring Gorsuch up for a vote.
While it may not be the only option, going nuclear is likely the fastest option, and the least painful in the short run. It could be damaging for the Senate in the long term, though.
“If such a showdown occurs, it would be about more than ending Senate tradition of allowing an entrenched minority to stymie legislation and nominees through the filibuster,” Washington Post columnist Paul Kane wrote. “It would be about forever changing the nature of the Senate, which the founders set up with the express goal to slow down and cool off the hasty and heated impulses more common in the House.”
One example of a non-Supreme Court vote where the filibuster could come into play is a potential replacement for the Affordable Care Act (ACA, also known as Obamacare), according to Richard A. Arenberg, a former Democratic Senate staffer.
“Does anyone doubt that an enraged Trump would not immediately demand the use of the nuclear option to squash the filibuster? Would the GOP Senate majority be capable of resisting the pressure under those circumstances?” Arenberg wrote for The Hill.