The Nuclear Option

If you saw headlines like this….

Mitch McConnell Goes ‘Nuclear’

To Break Supreme Court Filibuster

You might think politics is way more dangerous than you thought.  OK, ‘nuclear’ is not meant in a literal sense but here is what it means and why it’s important.

There are things that neither the House or the Senate can do with  a simple majority vote. For example, a bill might pass the Senate with a 51 to 49 vote but if the President vetoes the bill, it takes 60 votes to override that veto. Such rules are designed to keep the majority political party in power from rolling all over everybody.  You have to make some effort to reach out to the minority party.

Then there’s the filibuster.

Now this refers to act of not shutting up. When it comes time for a cloture vote (we’ve debated this enough), that vote can’t happen if a Senator still has the floor. So a Senator gets up to talk and just keeps talking.

And talking.

And talking.

It takes 60 votes to stop a filibuster.

Unless you change the rules. And this brings us to the nuclear option.

A lot of these rules that guide the Senate have been developed internally over time. Basically, the rules are the rules because the Senate says so. 

Which means the rules can be changed because the Senate says so.  

It takes 60 votes to end a filibuster. Since there are 52 Republicans, and they could only come up with a few Democrats to join them in voting to end the filibuster, the only way McConnell could confirm Gorsuch was to change the rules by challenging that 60-vote standard, and then demanding a vote on it.

“I raise a point of order that the vote on the cloture under the precedent set on 11/21/2013 is a majority vote on all nominations,” he said.

Under the rules, the senator in the chair was obligated to rule that McConnell’s point was wrong, which then allowed him to appeal for a vote of his fellow senators to disagree with the ruling. All 52 Republicans voted to disagree. All 48 Democrats voted to uphold it.

That resulted in permanently changing the Senate rules so it only takes 51 votes to advance a Supreme Court nominee. Majority parties will no longer have to concern themselves, at all, with the opinions of the minority party or their voters for any presidential appointments.

It normally takes a two-thirds vote, or 67 votes, to jettison Senate rules in the middle of a session. The fact that McConnell used the nuclear option to do it is a rare step that generates extreme ill-will in a historically deliberative body.

This is called a nuclear option because once you’ve used, there’s no take backs, no matter who is in power. In the future, if the Democrats regain control of the Senate and the Republicans want to filibuster a Supreme Court nominee, nope, can’t do it.

Now why were Democrats staging a filibuster of Trump’s Supreme Court nominee,  Neil Gorsuch?

1. Gorsuch is too conservative for the Democrats.
2. He’s Trump’s nominee. Democrats are under a lot of pressure from their constituents back home not to give an inch on whatever Trump wants.
3. The shitty way the Republican controlled Senate treated Obama’s own nominee to the court last year. Payback’s a bitch.

The Republicans also would claim that payback is indeed a bitch. Basically, they say Sen. Harry Reid as Democratic Senate Majority leader started this whole nuclear option stuff back in 2013 when he invoked a similar measure on lower court nominees. There were hundreds of unfilled judicial positions resulting in backlogged courts and lots of citizens trapped in a barely working legal system. Republican Senators were blocking and obstructing Obama’s nominees to these positions, mostly working on Mitch McConnell’s edict of not doing anything Obama wanted. 

All that was left to do next was Gorsuch’s confirmation vote on Friday.