As expected, Senate Republicans, following the precedent set by Harry Reid and Senate Democrats in November 2013, invoked the so-called ‘nuclear option’ to reduce the number of votes needed to invoke cloture on Supreme Court nomination, thus guaranteeing a final floor vote on the nomination of Judge Neil Gorsuch to the Supreme Court early tomorrow evening:
WASHINGTON — Senate Republicans changed longstanding rules on Thursday to clear the way for the confirmation of Judge Neil M. Gorsuch to serve on the Supreme Court, bypassing a precedent-breaking Democratic filibuster by allowing the nomination to go forward on a simple majority vote.
In deploying the so-called nuclear option, lawmakers are fundamentally altering the way the Senate operates — a sign of the body’s creeping rancor in recent years after decades of at least relative bipartisanship on Supreme Court matters. Both parties have likewise warned of sweeping effects on the future of the court, predicting that the shift will lead to the elevation of more ideologically extreme judges if only a majority is required for confirmation.
Senate Democrats in 2013 first changed the rules of the Senate to block Republican filibusters of presidential nominees to lower courts and to government positions, but they left the filibuster in place for Supreme Court nominees, an acknowledgement of the sacrosanct nature of the high court. That last pillar was knocked down on a party-line vote, with all 52 Republicans voting to overrule Senate precedent and all 48 Democrats and liberal-leaning independents voting to keep it.
The Senate then voted 55-45 to cut off debate — four votes more than needed under the new rules — and move to a final vote on Judge Gorsuch’s confirmation Friday evening, with a simple majority needed for approval.
Lawmakers first convened late Thursday morning to decide whether to end debate and advance to a final vote on Judge Gorsuch. Republicans needed 60 votes — at least eight Democrats and independents joining the 52-seat majority — to end debate on the nomination and proceed to a final vote. Only a handful of Democrats defected, and the vote failed, 55-45, leaving Republicans to choose between allowing the president’s nominee to fail or bulldozing long-held Senate practice.
For weeks, the outcome of the Senate fight has appeared preordained, even as members lamented its inevitability as a low moment for the chamber. In recent days, faint rumblings of a deal to avert the clash had faded almost entirely.
Republicans have argued that changing the rules to push through the nomination was their only option, seeking to shift responsibility for blowing up the Senate’s longstanding practices to the Democrats. Allowing the filibuster to succeed, they said, would cause more damage than overriding Senate precedent to ensure it fails.
“This is the latest escalation in the left’s never-ending judicial war, the most audacious yet,” Senator Mitch McConnell of Kentucky, the majority leader, said after describing Democratic opposition in the past to Judge Robert H. Bork and Justice Clarence Thomas. “And it cannot and it will not stand. There cannot be two sets of standards: one for the nominees of the Democratic president and another for the nominee of a Republican president.”
But Democrats had shown no signs of forsaking their filibuster plans all week. That has pleased their most progressive voters, who have preached resistance to Mr. Trump at every opportunity, and supplied the minority party with perhaps its loudest megaphone so far under the new president.
Many Democrats remain furious over the treatment of Judge Merrick B. Garland, President Barack Obama’s nominee for the seat left vacant with the February 2016 death of Justice Antonin Scalia. Republicans refused to even consider Judge Garland during the presidential election year, a fact Mr. McConnell has not dwelled on during public statements about the history of Republican behavior under Democratic presidents.
“There must have been a hacking into his computer,” Senator Richard J. Durbin, Democrat of Illinois, said of Mr. McConnell on Thursday from the Senate floor, “because he can’t print the name Merrick Garland to include in the speech.”
At the same time, critics of Judge Gorsuch say they have identified ample reasons to oppose him, chafing at the suggestion that Democrats are merely seeking payback. They have cited concerns over Judge Gorsuch’s record on workers’ rights and whether he will be reliably independent from Mr. Trump and conservative groups like the Federalist Society, among other issues.
The entire process of invoking the ‘nuclear option’ was, in the end, rather anti-climactic notwithstanding all the rhetoric about how dramatic and fundamental a change this would be to the nature of the Senate. After the initial cloture vote failed, Senate Majority Leader Mitch McConnell went through a series of procedural step to put the issue of setting a new precedent regarding cloture votes for Supreme Court nominations while Senate Minority Leader Chuck Schumer put forward two motions, one to delay the consideration of the Gorsuch nomination until after the Senate returns from its Easter recess and the other to delay any further votes today until after 5 pm. After both of those votes failed on a largely partisan basis with only three Democrats — Joe Manchin, Joe Donnelly, and Heidi Heitkamp — voting with the Republicans to invoke cloture, McConnell formally went forward with a revised cloture vote that only needed 51 votes to pass. That vote ended up being 55-45, meaning that the Senate is now at the start of the final thirty hours of debate on the nomination. After that period ends, which will be roughly around 7 pm tomorrow evening after taking recesses into account, the Senate will hold a final vote and Gorsuch will be confirmed, most likely by the same 55-45 vote.
Once it was clear that there would not be sufficient Democratic support for the GOP to get to sixty votes on a cloture motion, it was clear that we’d get to this point. In fact, one might say that this day was made inevitable when Reid and the Democrats ended the sixty-vote rule for Executive Branch appointments and all Judicial nominations below the Supreme Court. At that point, the logic for keeping the traditional cloture rule in place for Supreme Court nominations seemed especially weak. After all, the Judicial nominations that were impacted by the Reid precedent are, with the exception of a small number of lower-level courts such as the Tax Court, subject to the same lifetime appointment that Supreme Court Justices get and the precedents that Circuit and District Court Judges set can have just as much of a nationwide impact as a Supreme Court opinion. The best examples of that can be seen in the recent actions by Federal District Court Judges in Washington State and Hawaii who imposed nationwide injunctions against enforcement of President Trump’s Muslim Travel Ban, the various Circuit Court rulings that led up to the Supreme Court’s ruling in Obergefell v Hodges finding that laws banning same-sex marriage violated the 14th Amendment, and various other Circuit Court rulings on issues ranging from gun control to civil rights. Given this, the only real argument left in favor of maintaining the sixty-vote rule for Supreme Court Justices was a sense of tradition that, as the events of November 2013, don’t seem to have the same force and effect in the Senate that it used to, In any case, the deal is done and Neil Gorsuch will be on the Court in sufficient time to participate in the final weeks of oral argument later this month, although none of the remaining cases appear to be landmark cases.
