The Senate Can Use the 'Nuclear Option' to Approve Supreme Court Nominee Gorsuch
President Donald Trump announced his nominee to fill the vacant seat on the Supreme Court Tuesday night, naming 51-year-old Colorado Federal appeals court judge Neil Gorsuch.
Less than 24 hours later, President Trump sent a direct message to Senate Majority Leader Mitch McConnell (R-KY) about using a political maneuver called the "nuclear option" to streamline the approval of his nominee without needing 60 votes.
"If we end up with that gridlock, I would say if you can, Mitch, go nuclear," President Trump said. "Because that would be an absolute shame if a man of this quality was caught in the web."
Here is how the maneuver would work:
What is the nuclear option?
Going "nuclear" is a colloquial term that has popped up in recent years to describe changing the longstanding precedent by which the Senate determines how many votes are required to end debate on a bill, confirmation or other vote –- a process known as "cloture."
Under Senate rules, three-fifths of senators are required to vote in favor of ending debate, or "for cloture." But in 2013, Senate Democrats employed a series of procedural maneuvers to change that requirement to a simple majority of just over half, or 51 votes, for all cabinet-level appointments and judicial nominations -- except those to the Supreme Court.
The maneuvers became known as the "nuclear option."
Facing a confirmation fight over a judge on whom Democrats have pledged to require 60 votes –- votes Republicans might not have -– they are considering changing the precedent to approve Supreme Court justice nominees to 51 votes, the same as all other confirmation-level nominees.
The concern for Republicans, however, is that the next time they are in the minority, Democrats could also use the nuclear option and pass their own nominees, who Republicans may not want to confirm, with a simple majority.
The political move has been traced back to 1957 when then-Vice President Richard Nixon stated the Constitution granted the President of the Senate the authority to override Senate rules by making a ruling that is upheld by majority vote.
A 2013 paper by Valerie Heitshusen, a legislative branch process expert and educator in the Congressional Research Service (CRS), explains the nuclear option as a "novel" political move because it "could undermine the prerogatives exercised heretofore by the Senate minorities or individual Senators."
What would the nuclear option do?
The nuclear option would effectively change the threshold needed to approve a Supreme Court Justice from 60 to 51 votes, changing the number traditionally required to break a Senate filibuster.
Most recently, the move was used by Democrats in 2013. Citing an expansion of filibustering by Republicans to block President Barack Obama’s nominees for U.S. Court of Appeals seats, then-Senate Majority Leader Harry Reid (D-NV) used the nuclear option to create more relaxed Senate precedents for those confirmations. The 60 vote approval then only applied to confirmation of Supreme Court justices.
Why is the nuclear option being discussed?
A number of Democrats in both the House and Senate have suggested they will block any efforts to confirm Gorsuch to the Supreme Court.
Senate Democratic Leader Chuck Schumer, D-New York, isn’t giving Republicans much of a choice on whether or not they will have to use the nuclear option, saying Democrats will ensure Gorsuch gets an "exhaustive" hearing and need the full amount of votes.
"There will be 60 votes for confirmation. Any one member can require it; many Democrats already have. And it is the right thing to do," Schumer said.
Schumer cited "serious concerns" about Gorsuch’s overall record on issues like women’s rights and corporate influences in politics. Republicans also refused to hold hearings for President Obama’s March 2016 Supreme Court Justice nominee, Chief Judge Merrick Garland, shortly after Justice’s Antonin Scalia’s death in February of the same year.
McConnell appears to be starting with an appeal to colleagues on the other side of the aisle not to insist on Gorsuch passing a 60-vote threshold, before invoking the nuclear option.
"I would invite Democrats who spent many months insisting 'We need nine,' to join us in following through on that advice by giving the president’s new nominee fair consideration and an up and down vote," McConnell said, "just as we did for past presidents of both parties."
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