Matthew T. Mangino
April 7, 2017
Congratulations, Neil Gorsuch. You are the newest member of the United States Supreme Court. The question is at what cost?
The Republican-led U.S. Senate invoked the so-called “Nuclear Option.”
Former Republican leader Trent Lott coined the term to describe a rule change that would ban judicial filibusters and allow up-or-down votes on the president’s nominees.
A filibuster generally refers to extended debate that delays a vote on a pending matter, while cloture is a device to end debate. Filibusters are used by opponents of a nominee or legislation, while cloture is filed by supporters. Under the Senate rules as they existed yesterday, it took 60 votes for the cloture-ending debate.
In 1917, the Senate voted to empower a supermajority of 67 votes for cloture. In 1975, the Senate lowered the supermajority to 60 votes. The last Supreme Court nominee who faced a cloture vote was Samuel A. Alito Jr. in 2006. In Alito’s situation, cloture passed with 75 votes and he proceeded to a vote of the full Senate where he was confirmed.
The late Chief Justice, William H. Rehnquist, faced a cloture vote on his confirmation to the high court and later on his confirmation as chief justice. In 1968, President Lyndon B. Johnson’s nominee for chief justice, Justice Abe Fortas lost a cloture vote. Fortas later withdrew.
The relatively rare filibuster of a Supreme Court nominee’s confirmation began this week. The Republicans did not have enough votes for cloture. Seemingly, the debate would continue and Gorsuch’s confirmation would not come up for a vote.
With no hope of confirmation does Gorsuch withdraw? No, the Republicans change the rules, instead of needing 60 votes for cloture the rule change provides a simple majority — 51 votes — for cloture, debate ends and Gorsuch becomes the 113th justice of the U.S. Supreme Court.
What is apocalyptical about changing the rules? The Senate likes to think of itself as the greatest deliberative body in the world. The filibuster and cloture votes have long been revered as tools that prevent hasty legislation and the confirmation of extreme nominees.
A rules change on Supreme Court nominees would be momentous for the Senate, which prides itself on bipartisanship and consent from all senators. Some warn that a rules change could begin to unravel Senate traditions and perhaps end up in the complete elimination of the filibuster — which could alter the reputation of the Senate.
As Democrats lament the dismantling of Senate traditions, they need look back only a few years for the impetus for this week’s action. In 2013, Democrats were in the majority and Sen. Harry Reid of Nevada was their leader. He was upset about the blockage of President Barack Obama’s nominees to federal appellate courts. Democrats pushed through a rules change lowering the vote threshold for cloture for court nominees — except those for the Supreme Court — from 60 votes to a simple majority vote.
The current situation was certainly exacerbated by the Republicans’ refusal, for nearly a year, to grant a hearing to Merrick Garland, President Obama’s pick for the Supreme Court seat that Gorsuch will now occupy.
The ultimate result of the “Nuclear Option” is this president, and future presidents, will no longer need to look to more moderate nominees to the Supreme Court, they can pick more ideological nominees capable of winning only on a party-line vote, with no real concern for working across the aisle to build consensus.
The U.S. Senate, long admired as a body steeped in history and above partisan bickering and back-biting, has taken yet another step toward mediocrity and public indifference.
— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino
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