The United States Senate is set to hold a confirmation vote on Neil Gorsuch’s nomination to the Supreme Court on Thursday.
At least 41 Democrats currently oppose the nomination and have promised to mount a filibuster, meaning they will vote against cloture. Republicans are promising to do whatever is necessary – including using the so-called nuclear option
– to put Gorsuch onto the bench.
Here's the breakdown:
In order for a resolution, bill, or nomination to pass the Senate, it has to pass two separate votes. The first is a vote to end debate, otherwise known as cloture
. Under the current rules, it takes at least 60 Senators to vote to end debating an issue in order to move on to the final vote. If at least 41 Senators vote against cloture, then the measure is blocked from moving to a final vote. In other words, it is filibustered
Once the Senate invokes cloture, a final vote is held. There, it takes just a simple majority vote to pass a bill or confirm a nomination.
As recently as 2013, a 60-vote minimum was required to end debate on practically all Senate business. However, then-Majority Leader Harry Reid invoked what is known as the “nuclear option.” Fed up with Republicans unwilling to consider President Obama’s lower court nominees, Reid and Democrats lowered the cloture requirement to 51 votes for all non-Supreme Court nominations
. That allowed Democrats to confirm President Obama’s judicial and executive branch nominees without having to court a single Republican vote.
Fast-forward to today and we see a similar circumstance. Democrats are refusing to allow an up or down vote on Donald Trump’s Supreme Court nominee, Neil Gorsuch. They are angry that President Obama’s nominee – Merrick Garland – was not given a hearing or a vote last year. When Justice Scalia passed away, Senate Republicans announced they would leave his seat vacant until the next President could make a nomination. Democrats are now using this as an excuse to filibuster Neil Gorsuch. This has prompted Senate Majority Leader Mitch McConnell to threaten to use the nuclear option to lower the cloture requirements for Supreme Court nominees as well.
Has it always been like this? No.
With rare exception, qualified Supreme Court nominees have not typically been filibustered in the Senate. Even if one party disagreed with a nominee on a particular issue, they would still vote to end debate in order to allow a final up or down vote.
For example, the Senate voted 72-25 for cloture on the nomination of George W. Bush’s Supreme Court nominee Samuel Alito. Democrats considered filibustering him but ultimately decided to allow an up or down vote. The final vote to confirm Samuel Alito to the Supreme Court was much closer: 58-42. Even though more than 40 Democrats opposed Alito’s confirmation, they did not exert this power to block a final vote.
Supreme Court nominations also used to be much less political. The late-Justice Antonin Scalia, the most conservative Justice in recent memory, was confirmed 98-0 in 1986. Justice Ruth Bader Ginsburg, arguably the Court’s most liberal member, was confirmed 96-3 in 1993.
What does this mean going forward?
If the Democrat filibuster holds and at least 41 Senate Democrats refuse to vote for cloture, McConnell is expected to use the nuclear option to push Gorsuch through. This action will drastically reduce the power of the minority party in the Senate.
While the House of Representatives operates on a purely majoritarian system – 50 percent plus one wins – the Senate was designed to be a much more deliberative body. Resolutions move through the Senate at a much slower pace and minority parties have much more power to stall or derail measures.
Changing the Senate rules would prevent a minority party from being able to block any Presidential nomination in the future. There are significant rumors that Justice Anthony Kennedy – the swing vote on the Supreme Court – is considering retirement later this year. If GOP Senators go nuclear, then Democrats would be powerless to stop a conservative nominee from replacing Kennedy’s swing vote.
The fact that we are even talking about the nuclear option being used to confirm a Supreme Court nominee shows just how divided Capitol Hill has become in recent years.