Mitch McConnell Goes ‘Nuclear’ To Break Supreme Court Filibuster

Republicans' historic move ends the Senate minority's power to block nominees and clears a path for Neil Gorsuch.

WASHINGTON ― Senate Majority Leader Mitch McConnell (Ky.) and his fellow Republicans pulled the nuclear rules trigger Thursday, gutting the filibuster rule for Supreme Court nominees after Democrats blocked President Donald Trump’s conservative pick, Neil Gorsuch.

Democrats argued that Gorsuch, a Colorado federal appeals court judge, was simply too conservative, and were nearly united in filibustering his nomination. They also criticized Republicans for the way they treated President Barack Obama’s Supreme Court nominee, Merrick Garland, who was denied both a hearing and a vote last year.

“That name is the reason we are in this spot today,” Sen. Dick Durbin (D-Ill.) said of Garland. “For the first time in the history of the Senate, for the first time ever, this Republican-led Senate refused to give this nominee a hearing and a vote. It had never, underline the word never, happened before.”

Republicans said the other side was making history of their own by carrying out the first partisan filibuster of a Supreme Court nominee.

“We need to restore the norms and traditions of the Senate and get past this unprecedented partisan filibuster,” McConnell said, moments before rattling off procedural speak that set the rules change in motion.

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.

After changing the rules, McConnell held the vote again on advancing Gorsuch’s nomination. It passed, 55 to 45, under the new rules. All that’s left now is Gorsuch’s confirmation vote, which is set for Friday.

Mitch McConnell gives a thumbs up after changing the Senate rules to force through Supreme Court nominee Neil Gorsuch's confirmation on a party-line vote.
Mitch McConnell gives a thumbs up after changing the Senate rules to force through Supreme Court nominee Neil Gorsuch's confirmation on a party-line vote.
Tom Williams via Getty Images

Senate Minority Leader Chuck Schumer (D-N.Y.) made last-ditch attempts to forestall the nuclear vote, but his efforts to adjourn the Senate and postpone action until April 24 so the parties could try to work out a compromise failed on party-line votes.

In the days running up to the vote, Republicans said they were simply finishing the work that then-Senate Majority Leader Harry Reid (D-Nev.) began in 2013, when he used the nuclear option to change the rules so it only takes 51 votes to advance lower court nominees.

But Schumer reminded observers how the Senate got to that point. Republicans had been delaying action on Obama’s lower court nominees for years, and Schumer noted that of all 147 cloture motions filed on judicial nominations in the history of the nation, 79 of them ― more than half ― were prompted by GOP blockades of Obama nominees in just the first six years of his presidency.

Schumer and other Democrats had been urging Republicans to work with them to find a new Supreme Court nominee that eight Democrats would back, instead of changing the rules. That idea never gained GOP traction.

Some Republicans, such as Sen. John Cornyn (Texas), argued that changing the rules simply restores the Senate to an era when filibusters of judges were rare. But many other senators, including some Republicans, argued that the move would only further drive the sides apart, and worsen the ideological bent of the judiciary.

Even Sen. John McCain (R-Ariz.), who has helped cut bipartisan deals in the past to preserve the filibuster, voted for the nuclear option. He warned just a day earlier that doing so would do “perhaps irreparable damage.”

By and large, Democrats seemed subdued after the vote and resigned to the result, which they believe Republicans decided on before there was even a filibuster.

“I did not see any interest from Sen. McConnell to work out a compromise,” said Sen. Ben Cardin (D-Md.). “If the majority is not interested, there’s not much the minority can do.”

“It’s a setback for sure, but we’ve got a lot of other work to do,” said Sen. Angus King, a Maine independent who caucuses with Democrats. He pointed to the upcoming budget, the defense bill and the Intelligence Committee’s ongoing probe of Russian connections to the Trump campaign.

Sen. Chris Van Hollen (D-Md.), who recently won election to the upper chamber from a seat in the House, ruefully lamented the vote, noting that a body that prides itself on rules that require consensus is slowly becoming more like the one he just left, where the majority rules all.

“It’s unfortunate,” Van Hollen said. “We’re heading for a House with 100 members.”

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