The Senate Judiciary Committee’s hearings on President Trump’s nomination of Neil Gorsuch to the Supreme Court are set to begin today. Senate Majority Leader Mitch McConnell has promised to bring the nomination to a vote on the Senate floor before the Senate breaks for its Easter recess on April 10.
Republicans control the Judiciary Committee, so unless something wholly unexpected comes out at the hearings, there is little doubt that the Committee will send the nomination to the full Senate with a recommendation that Gorsuch be confirmed.
Confirmation by the full Senate might not be as easy. If Senate Democrats decide to filibuster the Gorsuch confirmation, it will take two votes in the Senate, not one, to get Gorsuch confirmed.
The first vote will be to end the Democratic filibuster. If and only if that first vote succeeds, will there be a second vote on the confirmation itself.
While there are enough Republican votes in the Senate to confirm Gorsuch by a simple majority, Senate rules require a super-majority of 60 votes to end a filibuster. Given the current composition of the Senate, it is not at all clear that the Republicans can get the 60 votes they would need to bring the Gorsuch nomination to the Senate floor for an up or down vote.
But Republicans have a Plan B, called the “nuclear option,” to end a Democratic filibuster without having to obtain the 60 votes required by the Senate rules.
The nuclear option has never been used to confirm a Justice to the Supreme Court.
But there is little doubt that the Republicans will use it to confirm Gorsuch if that’s what it takes.
It is Virtually Certain That Gorsuch Can Win a Majority Vote in the Senate
In the absence of a filibuster, a majority vote is all that is needed to confirm a Supreme Court Justice.
Judge Gorsuch is widely regarded as a smart, highly-qualified jurist with a fine judicial temperament. His political ideology and judicial philosophy seem to align perfectly with current Republican thinking.
There is every reason to believe that the Senate Republicans will stick together and vote unanimously to confirm Gorsuch.
Given the Republicans’ control of 52 of the 100 Senate seats, and the likelihood that at least one or two Democratic senators from swing states will also vote in favor of confirmation, winning an up or down vote on the Senate floor seems like a slam dunk.
But Democrats May Be Able to Stop the Vote from Getting to the Senate Floor
The wild card here is the possibility of a filibuster by Democrats. Anybody who has seen the movie Mr. Smith Goes to Washington has some idea of how a filibuster works.
Simply put, a filibuster is a parliamentary tactic to prevent a measure from being brought to a vote on the Senate floor by extending debate on the measure.
A successful filibuster can delay a Senate vote indefinitely. And it doesn’t take a heroic everyman like Jimmy Stewart to pull it off.
A determined senator or group of senators can execute a filibuster while the Senate is conducting other business, and still make it home in time for dinner. Rand Paul’s Stewart-like “filibuster” on the Senate floor a few years ago was strictly for show. That’s not how filibusters work nowadays.
That’s why people say it takes 60 votes to pass a bill in the Senate, not a simple majority.
But filibusters don’t always succeed in preventing a measure from getting to the Senate floor. They can be ended by a vote to terminate debate, known as a vote of “cloture.” Under current Senate rules it takes 60 votes to terminate debate and bring the measure to the Senate floor for an up or down majority vote.
Republicans Are Unlikely to Get the 60 Votes They Would Need for Cloture
While Senate Republicans are virtually certain to win a majority vote of the full Senate to confirm Gorsuch, getting the 60 votes needed to end a Democratic filibuster is an entirely different story.
You can’t win a vote in the Senate if you can’t get the vote to the Senate floor in the first place.
If the 46 Democratic senators stick together, they will easily have more than the 41 votes they would need under Senate rules to prevent the Republicans from terminating a filibuster. They could even lose five votes along the way, and still prevent cloture. And that doesn’t count the two Independent senators who caucus and generally vote with the Democrats.
So the Democrats seem to have more than enough votes to sustain a filibuster that would keep the Gorsuch nomination from getting to the Senate floor.
Game, set and match for the Democrats, right? The Gorsuch nomination is DOA, right?
Enter Mitch McConnell, Armed with the Nuclear Option
The Senate rule requiring 60 votes to terminate a filibuster appears, on its face, to be a potentially significant obstacle to Gorsuch’s confirmation.
But there’s a nifty way out known as the “nuclear option.”
Leave it to the United States Senate to cook up a procedural gimmick that throws the rules out the window and converts a 60-vote requirement into a 51-vote requirement.
The detailed mechanics of the nuclear option can be complicated, but as they say, you don’t have to know how to build a clock in order to tell what time it is. Suffice it to say that the presiding officer of the Senate can ask the full Senate to decide, by majority vote, to permit any measure to be decided by a simple majority even though the Senate’s own rules require a three-fifths vote to end a filibuster.
Don’t you wish you could change the rules any time you found them inconvenient?
Welcome to the United States Senate. They have been able to perform this kind of reality-bending stunt for decades. In the Age of Trump, reality-bending stunts are right in step with the times.
The nuclear option is low hanging fruit. Senate Republicans are more than willing to take a bite, especially after Democrats took a nibble during the Obama administration.
In 2013, Senate Democrats used the Nuclear Option to eliminate filibusters on confirmation of judicial appointments by President Obama. They did not use it on Supreme Court nominations, but they didn’t have to. Senate Republicans did not filibuster either of the Obama Supreme Court nominees, and both were confirmed by more than 60 votes anyway.
“If you can, Mitch, go nuclear”
Have no doubt that if the Democrats filibuster the Gorsuch nomination, and if McConnell cannot get the 60 votes needed to end the filibuster, he will use the nuclear option to have Gorsuch confirmed by a simple majority.
President Trump has given McConnell the green light: “If we end up with that gridlock, I would say, ‘If you can, Mitch, go nuclear.’”
Well, he can. And he will.
McConnell, as is his wont, has mumbled out mostly opaque pronouncements on the subject, but nobody doubts his intentions. Asked point blank by Chris Wallace whether he would use the nuclear option to force Gorsuch’s confirmation by a majority vote, McConnell deadpanned, “The nominee will be confirmed.”
Translation from McConnelleze to English: “Whatever it takes.”
Bottom line: McConnell is going to go nuclear if he can’t otherwise end a Democratic filibuster, and one way or another Gorsuch is going to be confirmed.
Open Question: Knowing that McConnell can get Gorsuch confirmed by countering a Democratic filibuster with the nuclear option, will Democrats force him to use it anyway?
Next up: Why they should, even though it won’t change the outcome.
Philip Rotner is an attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow Philip on Twitter at @PhilipRotner.