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Commentary

Why the Fight Over Neil Gorsuch Could End the Senate as We Know It

Feb 08, 2017

Senate Republicans have begun hinting that they’ll use the “nuclear option,” a maneuver to change Senate rules by brute force, to stop the Democratic minority from blocking the confirmation of Supreme Court nominee Neil Gorsuch. If they do, it will further intensify a decades-long parliamentary war between Democrats and Republicans that has fundamentally changed the Senate.

But this is not just about Gorsuch’s confirmation. Fundamentally at stake are the norms and traditions that have governed the Senate for centuries. Should Republicans go nuclear, they might be encouraged to take an even more radical step in the near future: doing away with the filibuster on general Senate legislation. Such a move could affect the repeal or replacement of Obamacare, gutting of Dodd-Frank, or slashing appropriations in funding bills. If majority parties held the House as well, they would be able to move through major legislation with virtually no impediments. It would be the end of the Senate as we know it.

The nuclear option involves a majority of senators backing a point of order that a simple majority, rather than a 60-vote majority as provided in the Senate’s Rule 22, can close debate, or invoke cloture, on a vote. In 2013, Democratic then-Majority Leader Harry Reid used this technique to force a reduction in the threshold for cloture on executive and judicial posts. In doing so, Reid and the Democrats altered the plain meaning of a written rule without giving the minority an opportunity to filibuster the change.

Supreme Court nominations were excluded from Reid’s 2013 move, because even some Democrats thought that super-majority cloture should be preserved for such important posts. But it’s only a matter of time before the Supreme Court exception is eliminated. Democrats did not initiate the nuclear option for Barack Obama’s nominee, Merrick Garland, in 2016. McConnell, on the other hand, is likely to pull the trigger if need be to win confirmation for Gorsuch.

Most Senate Democrats are likely to support a filibuster on Gorsuch. They share the view that the Republicans’ obstruction on the Garland nomination violated an important norm in a way that deserves a response. They also will face intense pressure from Democrats outside of Congress who do not like Gorsuch’s jurisprudence. They realize that the Republicans may go nuclear and confirm Gorsuch anyway, but for at least some Democrats, expressing their opposition is important.

The Republicans probably cannot acquire 60 votes to close debate on the nomination and get a vote. At the moment, Republicans are somewhat conflicted about how to respond if they end up in this situation. If Senate Majority Leader Mitch McConnell pursues the nuclear option to change the cloture threshold to a simple majority, he will need a majority of senators to support the move and will not be able to afford any defections from his party. He may have to face a handful of Republican traditionalists who do not want simple majority cloture for Supreme Court nominations.

We are likely to see a handful of senators from the two parties attempt to avert a crisis with a temporary fix. In 2005, the “Gang of 14”—seven Republicans and seven Democrats—committed to supporting the confirmation of blocked judicial nominations and opposed the nuclear option for the duration of that Congress. The Gang of 14 accord might be a model for 2017. Senator John McCain might try to be the savior of the Senate by appealing to moderates and institutionalists to strike a deal.

Yet such a bipartisan deal remains a low-probability outcome. At least eight Democrats and a handful of Republicans must be willing to support cloture on Gorsuch and future Supreme Court nominations and promise not to support the nuclear option, probably for the remainder of this Congress. That’s a tall order given the great uncertainty about when the next vacancy on the court will occur, as well as Democrats’ opposition to the president and disinterest in exhibiting bipartisanship.

If Republicans pull the trigger on the nuclear option on the Gorsuch nomination, that will not be the end of the story. Republicans in the House and outside of Congress, and perhaps even the president, will demand rapid action on Trump’s legislative agenda. While Senate Republicans have not expressed much interest in instituting simple majority votes on regular legislation, the pressure to take extreme measures will be intense. If they bend to that pressure by threatening the nuclear option again, Democrats are likely to put up a fight like we have not seen in the Senate in modern times.

It’s a shame that we’ve come to this point. Incessant minority obstructionism and majority limits on minority amendments have undermined the Senate’s ability to address real policy problems in creative ways. They spend more time fighting with one another. No wonder the general public is so often confused about what goes on within the Senate walls.

The nuclear option is a sledgehammer that can break the filibuster practice, but does not give senators a meaningful opportunity to consider alternative approaches to improving Senate procedure. They can do better.

Steven S. Smith is a professor of political science and director of the Weidenbaum Center at Washington University in St. Louis. He is the co-author of Politics or Principle: Filibustering in the United States Senate.

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