For those who thought the Cold War was over, welcome to the U.S. Senate. Just last week, Senate Republicans launched the “nuclear option” that put Judge Neil Gorsuch on the Supreme Court. As Gorsuch is sworn in today, his appointment may have ended a year-long battle to replace Justice Antonin Scalia, but the procedural maneuvering that put him on the Court will unleash substantial changes to the workings of the Senate and remove any illusions that the selection of Supreme Court justices is anything but political.
The nuclear option traces itself back to the Senate’s use of “filibusters,” a parliamentary tactic that allows even a single senator to halt business unless at least 60 senators vote for cloture, or an end to delay. Practically, its power exists when one party holds a narrow majority in the Senate – like the Republican’s current 52-48 vote advantage – and wants to pass legislation or confirm an appointee that the other party opposes. If a senator in the minority filibusters, he can prevent the majority from getting its way unless the latter can piece together a coalition of 60 senators to reach cloture and break the filibuster.
Republicans saw that in the Gorsuch nomination. All 52 Republicans and three Democrats had vowed to vote for Gorsuch, but Republicans couldn’t reach 60 votes to end the filibuster and move to an up-or-down vote on Gorsuch.
This is hardly the first time that the majority party has been frustrated by the minority’s use of filibusters, nor was the Republicans’ execution of the nuclear option unprecedented. During the presidency of George W. Bush, Republicans had a 55-45 majority in the Senate and were being beaten back by Democrats who filibustered Bush’s nominees to the lower federal courts. The Republican leader at the time, Senator Bill Frist, threatened to exercise what was coined the “nuclear option” by ruling filibusters inapplicable to judicial appointments.
Only the intervention of a bipartisan group of senators, dubbed the Gang of 14, saved the filibuster that year, when Democrats agreed not to filibuster judicial nominees except in “extraordinary circumstances.” However, the compromise was not permanent.
By 2013, the tables had turned. Democrats controlled both the Senate and the White House, and Senate Republicans were routinely filibustering President Obama’s nominees and preventing their ascension to the bench. Having had enough, and goaded by Republicans’ prior threats to end filibusters, Democratic leaders triggered the nuclear option. Under their action, nominees for executive-office appointments and the lower federal courts would no longer be subject to filibusters. However, Democrats did not extend the nuclear option to legislation or nominees to the Supreme Court.
All of which set the showdown for the Gorsuch nomination – a nomination, of course, that did not exist in a vacuum. The Supreme Court seat opened in February of last year when Justice Scalia unexpectedly passed away while on a hunting trip. Within a month, President Obama had nominated Judge Merrick Garland to fill the position. Garland is a widely-respected jurist, publicly viewed as one of the more moderate judges that a Democratic president might nominate. In fact, Garland had more than cleared the 60 vote margin in the Senate when he was confirmed to the D.C. Circuit in 1997, a time when Republicans held the majority.
However, Senate Republican leader Mitch McConnell promptly announced that Republicans would refuse to hold hearings for Garland, saying that a lame duck president should not be permitted to “fundamentally alter the direction of the Supreme Court.”
The Republicans’ intransigence enraged many Democratic activists, who believe that McConnell and his caucus “stole” a Supreme Court seat from President Obama and Judge Garland. Regardless of Judge Gorsuch’s qualifications, Democrats were not prepared to reward Republicans by confirming Gorsuch or even voting for cloture.
Republicans, then, had a choice: they could work with Democrats to find a consensus nominee that was acceptable to at least 60 senators or they could invoke the nuclear option and put Gorsuch on the Supreme Court. For them, it was an easy choice. Gorsuch is a so-called “originalist,” a jurist who one subscribes to the same conservative philosophy as Justice Scalia and who is likely to provide a reliably conservative vote on a Court that is often divided 5-4 on controversial issues.
The Senate’s end of the filibuster is problematic in three ways. At its most basic level it exposes the failure of our polarized political system to reach compromise. In what other field can we think of professionals unable to offer options that are acceptable to at least 60% of their members? When it comes to politics and the courts, however, we struggle with strongly opposing poles.
That struggle unmasks an even larger truth – that when it comes to Supreme Court nominees we are no longer arguing about the candidates’ legal acumen or ability; the debate is about their ideology and likely votes. Few doubt that Judges Garland and Gorsuch are both well-qualified, deep-thinking jurists, each fully capable of serving on the Supreme Court. At a different time, each would surely have been confirmed to the Court with little opposition.
But, with Republicans and Democrats unable to reach consensus on virtually anything, the Supreme Court has increasingly become the sole branch of government where the left and right must engage. Further, on a Court that is evenly divided and that regularly wades into the most contentious of social issues, justices are seen as having as much political power as elected politicians.
It’s for this reason that we see senators coming up with the silliest and most hypocritical of reasons for supporting, or even opposing, the nuclear option. Really, should we believe U.S. Sen. Mitch McConnell now for supporting the nuclear option against Democrat’s “abuse” of the filibuster when he decried Democrats’ “break[ing] the rules” earlier when they sought to do the very same thing and limit Republicans’ filibustering?
Republicans claim they will retain the filibuster for legislation, but having seen it jettisoned for all presidential appointments, it may only be a matter of time before that promise is broken, too. Should that come to pass, the Senate will have shed one of its greatest strengths – collegiality – and our political system will have lost a most basic ingredient, compromise.
Is there life in a nuclear winter? We will soon find out.
Jon Gould is a professor of public affairs and law at American University in Washington, D.C. He served in the Office of Legal Policy at the U.S. Justice Department during the Obama Administration.