“There were too many shaky hands holding the lighters near too many fuses.” – Stephen King, The Drawing of the Three
It’s always a numbers game on Capitol Hill. Which side possesses the most votes. After all, that’s the essence of democracy.
The Founders feared direct democracy -- and various other forms of republican democracy. So they tempered the power of the majority.
Unlike the House, the Senate was the deliberative body. There, the minority could often prevail -- entailing a supermajority to shut down filibusters.
Neutralizing a Senate filibuster used to take 67 votes (two-thirds). The Senate dropped that to a three-fifths requirement in 1975. However, a two-thirds vote is still necessary to alter the Senate’s rules.
This is why the numbers game is so important. It’s clear that a majority of senators want to confirm Supreme Court nominee Neil Gorsuch. But it’s doubtful that a supermajority of 60 senators are willing to shut off debate on President Trump’s nomination.
This brings us to the so-called “nuclear option,” a fundamental obliteration of the Senate’s structure requiring a supermajority to overcome a threatened Democratic filibuster of Gorsuch.
It’s unprecedented for the Senate to successfully filibuster a Supreme Court pick. Defeat a nominee on the floor? Yes. Look at what happened to President Reagan’s nomination of Robert Bork for the high court in 1987. Bork scored a scant 42 yeas when 51 ayes were necessary for confirmation. Require a Supreme Court nominee to secure 60 votes to shut off the filibuster before confirmation? Well, that’s a mixed bag.
Neither of President Obama’s selections for the court -- Justices Sonia Sotomayor nor Elena Kagan -- faced a “cloture” vote to end a filibuster. But the Senate confirmed both picks with supermajorities. Sotomayor secured 68 yeas. Kagan marshaled 63 yeas.
However, when President George W. Bush tapped Justice Samuel Alito for the Supreme Court in 2006, Senate Democrats (then in the minority) demanded a cloture vote to end a filibuster. Alito scored 72 yeas on the procedural vote. The Senate then confirmed Alito, 58-42.
This is what riles Senate Republicans. The GOP sports only 52 members right now. Two Democrats have announced their support for Gorsuch: Sens. Joe Manchin, West Virginia, and Heidi Heitkamp (North Dakota.
Both are moderate Democrats in red states who face potentially brutal re-election campaigns next year. Senate Majority Leader Chuck Schumer, D-N.Y., insists that if someone is going to sit on the High Court for life, they should command 60 votes on the Senate floor.
“It’s going to be a real, uphill climb to 60,” Schumer predicted for Gorsuch.
“It’s the most powerful court in the world,” said Sen. Bob Casey, D-Pa. “If you’re seeking to be an associate justice on the Supreme Court, you ought to be able to rack up 60 votes. I don’t think that’s unreasonable.”
Republicans know they face a deficit to defy the Democrats’ filibuster of Gorsuch. But Senate Majority Leader Mitch McConnell, R-Ky., is unwavering.
“We are going to get Judge Gorsuch confirmed,” he said. “It will really be up to (Democrats) how the process to confirm goes moving forward.”
Embedded in McConnell’s remark is a gambit to deploy the “nuclear option” to confirm Gorsuch. After all, it’s about the numbers. So if McConnell doesn’t have the numbers, he’s willing to do something drastic to promote Gorsuch.
“If the nominee cannot get 60 votes, you don’t change the rules,” Schumer argued. “You change the nominee.”
The 60-vote threshold is dubious for Supreme Court justices. All recent justices proved they could command 60 votes at some point in the process. But the ceiling for Gorsuch so far is at 54 votes.
So what exactly is the nuclear option?
Schumer is wrong about one thing. The nuclear option is not a rules change. It’s a change in Senate precedent. The chamber currently has 44 rules. But as mentioned before, altering those rules requires 67 votes, seven more votes than necessary to invoke cloture and stop debate on Gorsuch’s nomination.
So with only 52 Republican senators, McConnell can’t switch Senate rules. But he could set a new precedent.
See, the Senate also operates on precedent -- a set of parliamentary criterion based on things that happened before. So, if you can’t change the rules, perhaps establish a new precedent.
Democrats opened Pandora’s Box on the nuclear option in November 2013 when they held the majority in the Senate. Senate Democrats didn’t have 67 votes to change the chamber rules. But then-Senate Majority Leader Harry Reid, D-Nevada, enacted a new precedent of how many votes are necessary to extinguish filibusters on executive branch nominees except Supreme Court picks.
As we say, it is a numbers game. Reid had the numbers -- a simple majority -- to form a new precedent for those types of nominees.
It’s a numbers game today, too. McConnell has 52 Republicans on his side. He could conceivably launch the nuclear option to constitute a new precedent to require but a simple majority to end filibusters of Supreme Court nominees -- rather than the old bar of 60 votes. All McConnell needs are 51 Republicans to go along to with his gambit.
McConnell must be sure he has at least 51 of his 52 members willing to do the deed. Fifty yeas would suffice if Vice President Pence comes round to break the tie. It’s unclear whether McConnell has those votes. Some Republican senators are leery of re-opening Pandora’s Box to authorize a new precedent. Senators are generally reluctant to change the chamber’s long-standing traditions for a quick-fix today.
One school of thought is that McConnell could let the issue percolate over the upcoming, two-week Easter and Passover recess. This could gin up support among Republicans or even let the Democrats marinate for a while about the consequences.
But Fox is told by multiple, senior Republican sources that should the Democrats not help Republicans count to 60 on Gorsuch, McConnell has the votes on his side to deploy the nuclear option. It’s likely this will all go down on Thursday with a prospective confirmation vote on Friday.
It likely looks like this:
The Senate Judiciary Committee meets Monday to vote the Gorsuch nomination out of committee and dispatch it to the floor. Actual debate on Gorsuch begins in the Senate on Tuesday. Also on Tuesday, McConnell files a “cloture petition” to end debate on Gorsuch.
By rule, cloture petitions require an intervening day before they’re “ripe” for a vote. So a vote to end debate on Gorsuch likely comes Thursday.
Let’s say Gorsuch fails to get 60 votes to end the filibuster Thursday. That’s where McConnell trips the nuclear wire. From a procedural standpoint, the Senate must be in what’s called a “non-debatable” posture.
In other words, a failed cloture vote is just that. There’s no more debate. This parliamentary cul-de-sac is important because it’s practically the only procedural locus in which McConnell could initiate the nuclear option. Any other parliamentary disposition prevents McConnell from going nuclear. But this unique place -- following a failed cloture vote -- is practically throbbing with political isotopes.
McConnell could switch his vote to halt debate so he winds up on the “prevailing side” of the cloture vote. In other words, the Democrats won. The “nay” side prevailed. By briefly siding with the Democrats since they won that round, grants McConnell the right to demand a revote on that same issue.
This is where McConnell lights the fuse.
All McConnell must do is make a point of order that the Senate needs only a simple majority (51 votes) to end debate on a Supreme Court nominee. Naturally, whichever GOP senator is presiding over the chamber would rule against McConnell. After all, that’s not the precedent.
But McConnell would then appeal that ruling, forcing another vote. At that stage, the Senate is voting to sustain the ruling of the presiding officer. But if 51 senators vote no (remember, McConnell wants to establish a new precedent), the Senate has rebuked the chairman’s ruling and set a new precedent. Only 51 yeas are then necessary to break a filibuster on a Supreme Court nominee.
That is the nuclear option.
McConnell could summon Pence to preside over the Senate should he have two defectors on his side. Bizarrely, it’s possible Pence could rule against McConnell’s point of order -- adhering to Senate precedent. But Pence could then vote to break a 50-50 tie to establish a new precedent should it come to that.
The Senate would then re-take the failed cloture vote on Gorsuch. Presumably Gorsuch secures 51 yeas to end debate. And then Democrats, fuming at the GOP’s political artifice, would require the Senate to burn off 30 hours before a final vote to confirm Gorsuch on Friday night.
The Senate usually grants opponents of an issue 30 hours of debate once the chamber votes to end debate.
Prepare for nuclear fallout.
Republicans will claim that Democrats opened Pandora’s Box with their version of the nuclear option in 2013. Democrats will counter they had to because of Republican filibusters back then. Republicans will declare they had no other choice but the nuclear option because Democrats filibustered Gorsuch.
Democrats will contend it never should have come to this. The GOP should have granted President Obama’s Supreme Court nominee Merrick Garland a hearing.
Regardless, 51 votes will be the new precedent to break filibusters on Supreme Court picks. This is the nuclear option. It may be inevitable. As Stephen King wrote, “there were too many shaky hands holding the lighters near too many fuses.”