Democrats were successful in filibustering President Donald Trump’s Supreme Court nominee Neil Gorsuch, until Thursday afternoon when the Republicans invoked the “nuclear option” to shut down debate and advance the nominee by taking two votes.
There are 100 senators—two for each state—and Republicans control the Senate with 52 seats to 46 Democrat and two Independents seats. Under normal U.S. Senate procedures, a supermajority of 60 votes is required. However, the nuclear option is a parliamentary procedure that overrides the supermajority threshold by replacing the longstanding precedent with a simple majority of 51 votes.
Hence, on Thursday, Senators voted along party lines 52-48 to change the supermajority precedent to a simple majority of 51 votes. The ensuing second vote was 55-45 to advance a final confirmation vote on Gorsuch to Friday afternoon.
So, why is this happening? And, what does this all mean?
First, let’s put this matter into context.
Justice Antonin Scalia passed away in February last year. So, the scale of our Supreme Court has been out of balance for more than a year now with only eight justices instead of nine, as intended. Shortly after Justice Scalia’s death, President Obama nominated Judge Merrick Garland to replace Justice Scalia but Republicans refused to hold a hearing that would have led to either an up or down vote under the precedent of a 60-vote majority.
Republicans cited that any lame duck president—in a presidential election year—should not make a major decision impacting our highest court for decades to come. Well, they are not alone because Democrats said the same thing in 1992 when Republicans wanted support for judicial nominees.
Namely, Vice President Biden said that the historical tradition of not nominating a Supreme Court justice in a presidential year should not be broken. Furthermore, he stated, “…in my view, what history supports, common sense should dictate in the case of 1992.”
Under President George W. Bush, Democrats filibustered several judicial nominees to federal courts. Most notably in 2007, Sen. Charles “Chuck” Schumer stated that he would do everything in his power to prevent one more ideological ally from joining Justices Roberts and Alito. And Sen. Schumer wasn’t alone; in 2006, then-Senator Barack Obama also tried to filibuster President Bush’s nominee Judge Samuel Alito, now Justice Alito.
So, is this payback?
No. Democrats pioneered the nuclear option under then-Senate Majority Leader Harry Reid in 2013. Besides, Democrats and Republicans have filibustered each other on judicial nominees and other legislative matters since establishing America.
Sometimes in business and politics, you are not able to reach an agreement. In business, you have a hierarchy that will ultimately make a final decision when there’s an impasse. In politics, in this case, we either vote the person in, move on to the next person or now, use the nuke option.
But with the deployment of the nuclear option in the contemporary era of our legislative process, it will be a constant procedural threat along ideological party lines for the foreseeable future until it is removed. But for now, Judge Gorsuch is now Justice Gorsuch.