What is the nuclear option? Roadmap to how Gorsuch confirmation could play out

Senate Majority Leader Mitch McConnell declared on “Fox News Sunday” that the Senate is “going to confirm Judge Gorsuch this week.”

Embedded in McConnell’s remark is a gambit to deploy the “nuclear option” to confirm the Supreme Court nominee. After all, it’s about the numbers. So if McConnell doesn’t have the cooperation of eight Democrats alongside all 52 Republicans to garner 60 votes and overcome a filibuster, he’s willing to do something drastic to promote Gorsuch.

So what exactly is the nuclear option?

Though it is sometimes referred to as a rule change, it’s actually a change in Senate precedent.

The Senate currently has 44 rules. But altering those rules requires 67 votes. 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 Senate rules. But then-Senate Majority Leader Harry Reid, D-Nev., 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 just 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 if 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 Senate’s long-standing traditions for a quick-fix today.

Fox News 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 evening.

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 where 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 only needs 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, the Senate has rebuked the chair’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 body votes to end debate.