Senate Democrats now have enough votes to sink Judge Neil Gorsuch’s nomination for the Supreme Court. In response, Senate Majority Leader Mitch McConnell and Republicans are threatening to change Senate rules so that only a simple majority of senators are needed to confirm a nominee—a move also known as the nuclear option.
Republicans’ threats to invoke the nuclear option on Supreme Court nominees are not just politically expedient. Going nuclear would signal that long-awaited reform of the Senate rules has finally arrived, clearing away obstructionism and aligning the body more closely with the American public’s belief in majority rule. At the same time, it remains uncertain how such a monumental change will impact national politics and the role of the Senate.
In 2013, Democratic then-Majority Leader Harry Reid used the nuclear option to reduce the threshold for breaking a filibuster (a parliamentary procedure intended to delay a vote until it expires) on executive and lower-level judicial posts from 60 to 50 votes. In doing so, Reid and the Democrats altered the plain meaning of a Senate rule without giving the minority an opportunity to filibuster the change. This move set a precedent for Republicans’ current plans.
The nuclear option would change Senate rules so that only a simple majority is required to approve a Supreme Court nominee. This would shred Senate Rule 22, which intends to make it difficult to change Senate rules by requiring that three-fifths of senators must vote to end debate on a rule. In addition, it takes the Senate a step closer to simple majority rule for all matters. Nuking the filibuster for Supreme Court nominations will not affect the 60-vote threshold for regular legislation, but it is reasonable to speculate that this move will encourage those who want to change that threshold as well.
Furthermore, the nuclear option would transform the Senate into a smaller version of the House of Representatives, where a simple majority can change the rules and achieve votes on legislation at will. In time, Senate majorities could act to undermine the minority’s ability to slow action and restrict the ability of individual senators to debate and offer amendments to legislation, just as House majorities have done in the past.
All of this would represent a radical change for the Senate. While a cloud of uncertainty now hangs over the institution, a few things are clear.
First, this episode is the byproduct of more than two decades of intensifying minority obstructionism and procedural responses by the majority party in the Senate. This parliamentary war is fundamentally driven by parties that are deeply polarized about their vision for government, but the escalating procedural battles have themselves generated more and more partisan bitterness. While Republicans and Democrats share the blame, Republican minorities made obstructionism an everyday feature of the Senate under former President Barack Obama. McConnell, more than any single senator, has made the Senate a 60-vote institution. That is now proving inconvenient for him.
Second, this is not an environment conducive to sound thinking about the rules that govern America’s essential democratic institutions. Over the years, reformers have offered a variety of proposals to reduce obstructionism and guarantee the minority opportunities to be heard. Most longer-tenured senators have already considered these possibilities, but their thoughtfulness has little power at moments like this.
In contrast to most reformers, Reid and now McConnell have not made constitutional arguments in support of simple majority rule. Instead, their justification for the exercise of parliamentary brute force is simply that minority obstructionism is intolerable. In this partisan environment, that seems to be persuasive to their fellow partisans. On both sides, the composition of the Supreme Court over the next couple of decades is taking precedence over the role of the Senate in the nomination process.
Third, while McConnell’s move could alter the Senate’s role in confirming Supreme Court nominees for the long term, it is not likely that the Senate will take the much more radical step of extending simple majority cloture to regular legislation in the near future. Many conservatives have taken the view, often articulated by Republican Sen. Lamar Alexander, that the filibuster is an essential defense against further expanding the role of the federal government. While outside agitators and maybe one or two Republican senators may push for a majoritarian Senate now, few Senate Republicans, even McConnell, have expressed interest in moving in that direction.
Finally, it’s important to keep in mind that the Senate’s procedures are out of sync with the procedural sensibilities of most Americans. A recent national survey found that Americans want to protect the minority right to be heard and offer alternatives, but they also want the majority to be empowered to make a decision once the minority is heard. Both majority rule and minority rights are perceived to be essential to a democratic institution, and the Senate does not seem to have the right balance.
The Senate’s practices create a tension between majority and supermajority rule that is tolerated or ignored most of the time. These are tensions are not generated directly by the Constitution, but they are real and can only be relieved by senators themselves. Republicans now must decide if they are ready to fundamentally change the institution.
Steven S. Smith is a professor of political science and director of the Weidenbaum Center at Washington University in St. Louis.
