Day 76: Will Mitch go Nuclear?

The Nuclear Option

DAY 76 ACTION: Learn about the Senate showdown over Supreme Court nominee Judge Gorsuch, scheduled for this week.

Majority Leader Mitch McConnell, speaking to the press. Credit: AP/J. Scott Applewhite

“I believe the overwhelming view of the Republican Conference in the Senate is that this nomination should not be filled, this vacancy should not be filled by this lame duck president.” -Sen. McConnell, 3.16.16 (310 days before the end of President Obama’s term).

On Day 59, we introduced Trump’s Supreme Court nominee, Neil Gorsuch. In late March, Judge Gorsuch faced questioning by the Senate Judiciary Committee, which then approved his nomination on a party-line vote, 11-9. Now he heads to the floor.

** Have 8 minutes? Watch Senator Franken questioning Judge Gorsuch about his dissent in the wrongful termination “Frozen Trucker” case. **

41 Democrats announced they will oppose Gorsuch. Under Senate Rule 22, this means they have the votes to filibuster – in other words, refuse to end debate and indefinitely delay the vote. 

The filibuster has changed over time. Initially, both houses of Congress allowed for filibusters – the House abolished the practice as its numbers grew. In 1975, the number of Senators needed to end debate went from 67 to 60. And don’t expect any Mr. Smith moments – Senators no longer have to actively debate to delay a vote.

By late 2013, the GOP had systematically filibustered 79 of President Obama’s nominees (versus 68 in all previous administrations). When they filibustered a D.C. Circuit nominee, Majority Leader Reid went “nuclear”, using a parliamentary maneuver invented but used unsuccessfully by Vice President Nixon to push civil rights legislation. Reid raised a point of order, asking the chair to rule it was unconstitutional to use the filibuster so often. The chair denied the point of order, Reid appealed to the Senate, and won 52-48. The chair then noted the rule had been changed; from that point forward, executive and lower court (not Supreme Court) nominees could be confirmed on 51 votes. 

McConnell vows to confirm Gorsuch this week, using the nuclear option if necessary (by changing the rule again to abolish use of the filibuster against Supreme Court nominees). But there is not the same systematic use of the filibuster shown here, and if a Democrat objects to the point of order, it is not clear McConnell will prevail.

Today’s Action: Learn about the history of the filibuster, and how Majority Leader McConnell might end it this week and for all future Supreme Court nominations.


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