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Senate GOP Deploys ‘Nuclear Option’ for Supreme Court

Move allows Judge Neil Gorsuch to be confirmed by simple majority

Senate Majority Leader Mitch McConnell gives a thumbs up after the Senate invoked the "nuclear option" which will allow for a simple majority vote to confirm a Supreme Court nominee. (Tom Williams/CQ Roll Call)
Senate Majority Leader Mitch McConnell gives a thumbs up after the Senate invoked the "nuclear option" which will allow for a simple majority vote to confirm a Supreme Court nominee. (Tom Williams/CQ Roll Call)


The Senate took another step Thursday toward doing away with centuries-old traditions that have distinguished it from virtually every other legislative body in the world. 

Senate Republicans moved forward with invoking the “nuclear option” Thursday to make it so a simple majority of senators can confirm any future Supreme Court justice.

A total of 52 senators, all Republicans, voted to overturn the ruling of the presiding officer that 60 votes are required to limit debate on presidential nominations to the highest court.

The move lay the groundwork for a vote to cut off debate requiring only a simple majority vote, which succeeded, 55-45. That will be followed on Friday by a vote to confirm President Donald Trump’s Supreme Court nominee, Judge Neil Gorsuch.

An ‘unprecedented’ move

Majority Leader Mitch McConnell made a point of order that only a simple majority of senators should be required to confirm a presidential nomination to the Supreme Court.

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

Nebraska GOP Sen. Deb Fischer, presiding over the Senate, ruled against McConnell, who then appealed the precedent, putting the question to the Senate.

A majority of senators voted against holding that the presiding officer’s judgement should stand, 52-48, effectively reducing the threshold to a simple majority.

Before that vote, Fischer and Minority Leader Charles E. Schumer of New York engaged in what appeared to be a scripted exchange on existing precedents and the history of Supreme Court nominations being withdrawn. Schumer also forced several procedural votes, including a motion to adjourn.

Senators largely spent the morning voting from their desks as their names were called, a signal of the gravity of the events.

Going ‘Nuclear’: Watch the Senate Change its Rules for Supreme Court Nominees

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Who’s to blame?

Ahead of the votes, the sides traded blame.

“This is the latest escalation in the left’s never-ending judicial war, the most audacious yet, and it cannot, and it will not stand,” McConnell said. “There cannot be two sets of standards, one for the nominees of Democratic presidents and another for the nominees of Republican presidents.”

But, with the writing on the wall, Schumer stressed his willingness to work to ensure that the long-range consequences are mitigated.

“When the dust settles, make no mistake about it, it will have been the Republicans who changed the rules on the Supreme Court. But we take no solace that history will put it on their shoulders because the consequences for the Senate and for the future of the Supreme Court will be far-reaching,” the New York Democrat said. “It weakens the standing of the Senate as a whole, as a check on the president’s ability to shape the judiciary.”

Much of that check, for the rest of the federal judiciary, was eliminated by Senate Democrats back in 2013.

Neither side currently has an appetite for eliminating the 60-vote requirement to break legislative filibusters, but Schumer cautioned that too could change.

“I hope that we can get together to do more in future months to ensure that the 60-vote threshold for legislation remains, but just as it seemed unthinkable decades ago that we would change the rules for nominees, today’s vote is a cautionary tale about how unbridled partisan escalation will overwhelm our basic inclination to work together and frustrate our efforts to pull back,” Schumer said.

Sen. Joe Manchin III, who opposed both the 2013 and 2017 deployments of the nuclear option, lamented the damage to the chamber, citing the words of another West Virginia Democrat, the legendary Robert C. Byrd, who was an avowed institutionalist. 

“Sen. Byrd will be rolling over in his grave today as we trample on the tradition and the institution of the Senate,” Manchin said in a statement.

“Frustratingly, both parties have traded talking points: Republicans say it’s about obstructionism and Democrats say it’s a power grab,” Manchin continued. “Their shifting positions and hypocrisy is the one thing that unites them: Both times, it was simply about doing what was politically easy instead of doing the hard work of consensus building.”

Future changes?

Sen. Susan Collins could be seen on the floor during Thursday’s consequential vote sequence gathering signatures.

The Maine Republican, who went along with supporting the nuclear option, had told reporters that she intended to spearhead a letter to the two Senate leaders with as many senators as possible saying they would not support the elimination of a legislative filibuster.

Sen. John McCain, who had pushed against previous uses of the blunt instrument that allows one party to change Senate precedents, was not terribly optimistic about the legislative filibuster’s future. The Arizona Republican could be overheard calling it a “bad day for democracy.”

“I can’t say with confidence, and I’m afraid we’re on a slippery slope,” he told reporters this week. “Benjamin Franklin somewhere is turning over because he’s the one that advocated for the role of the Senate.”

While he backed McConnell’s effort Thursday, McCain said that without the supermajority requirements for legislation, there might as well be a unicameral legislature.

“Why should we be bicameral if they’re all voting, all operating under the same rules?” he said.

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