Senate Republicans invoke ‘nuclear option’ during Neil Gorsuch’s confirmation

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Neil Gorsuch testifies before the Senate Judiciary Committee on his nomination to be an associate justice of the US Supreme Court during a hearing in the Hart Senate Office Building in Washington, DC on March 22, 2017. / AFP PHOTO / Mandel Ngan (Photo credit should read MANDEL NGAN/AFP/Getty Images)

WASHINGTON – More than a year of tension over an empty Supreme Court seat came to a dramatic climax Thursday, when Senate Republicans used the nuclear option to make a permanent and controversial change in Senate rules.

During a vote to confirm Neil Gorsuch to the Supreme Court on Thursday, Democratic senators successfully filibustered after saying they wanted Republicans to pick another nominee.

The Republicans did not have the 60 votes to break the filibuster, only holding a 52-48 majority in the Senate.

In order to get around the filibuster, Republicans used the “nuclear option,” a change in Senate rules that would lower that 60-vote threshold for Supreme Court nominees down to a simple majority of 51.

Once the nuclear option is completed, the Senate will cast a second vote to break the filibuster at the new lower 51-vote threshold.

Next will come 30 hours of additional debate time, per Senate rules, before a final vote on Gorsuch’s confirmation, which is expected sometime Friday evening.

How did this all come about?

On January 31, Trump announced Gorsuch as his pick for the next Supreme Court justice, filling a seat vacated when Antonin Scalia passed away in early 2016.

Gorsuch’s first call after being announced went to another judge named Merrick Garland, who’d been nominated by President Barack Obama after Scalia’s death. But in the midst of a heated presidential election, Republicans refused to consider Garland’s nomination and kept the seat empty until the next president was sworn in.

It was a risky move and Democrats were furious, but it ultimately paid off for Republicans when Trump won in a surprise victory last November.

Fast forward several months, Democrats were still steaming over what some have called a “stolen” Supreme Court seat and brought it up multiple times throughout Gorsuch’s confirmation hearings and in Senate floor speeches.

On top of that, Democrats also took issue with Gorsuch’s performance at his hearings, saying he was evasive in his answers, and they zeroed in on his decisions in a few cases, painting him as far-right and out-of-the-mainstream.

Republicans, on the other hand, argue Gorsuch answered more than 20 hours of questions and was abiding by what’s known as the Ginsburg standard so as not to show his cards on how he’d rule in cases that may come before him.

Hitting back against the argument that he’s extreme, Republicans say Gorsuch sided with the majority in 99% of his opinions as a federal judge in the past decade, and the GOP said that of the 2,700 cases he has ruled on, 97% were decided unanimously.

Republicans, in fact, felt that Trump picked a relatively safe nominee and rallied behind Gorsuch, even as Democrats signaled early on that they would filibuster his nomination.

When Democrats held the majority, they used the nuclear option in 2013 to advance lower court nominees, much to the disapproval of Republicans.

Now that Republicans are in the majority, they’re citing that Democratic action as a precedent.

Both parties acknowledge the risks of the change. It essentially allows the majority party to clear future Supreme Court nominees with ease, so presidents could appoint more ideological nominees that wouldn’t require much, if any, bipartisan support

“This is going to be very bad,” Republican Sen. Lindsey Graham told reporters Monday. “If you want to get a judge on the court you better have a majority. So this is going to haunt the Senate, it is going to change the judiciary, and it’s so unnecessary.”

Sen. Michael Bennet, one of the four Democrats who plan to vote with Republicans to end the filibuster, said Wednesday on the Senate floor that “choices on both sides have brought us to this roadblock” and urged his colleagues to “step back from the brink” and “find common ground.”

“If we go down this road, we will undermine the minority’s ability to check this administration and all of those who follow,” he said.

Some fight to avoid going nuclear

A small, bipartisan group of senators held informal conversations in recent weeks to avoid the looming showdown.

“A number of us discussed it,” Republican Sen. John McCain told CNN. “We all wanted to do something, but we couldn’t agree on common ground. A testimony of the polarization of the Senate.”

Sen. Chris Coons, D-Delaware, said Wednesday that he worked with more than a dozen senators from both sides of the aisle to try to craft an agreement that would ensure the nuclear option wouldn’t be used again for future Supreme Court nominees.

“We just could not get there,” Coons said on NPR.

While Coons has expressed disappointment in Gorsuch’s answers at his hearings, he also offered some criticism of his own party.

“I know many on the left think this filibuster is a great thing and are celebrating the opposition to Judge Gorsuch, but the reality is looking forward, I think we are going to be looking at a Senate where the ability to work across the aisle, the ability to reach any agreement, and the ability to slow down any future highly partisan Supreme Court nominee will be less and less,” he said.

Democratic Sen. Bob Casey of Pennsylvania said he hopes that after this round of sparring is over, the two parties can come together to prevent a nuclear slippery slope that will one day have the same effect on legislation.

“We have to make sure that if there’s any move to go beyond this, that we stop it in its tracks and that’s going to require people in both parties to say we’ll agree to disagree on the Supreme Court — and it’s a substantial disagreement — but we cannot allow this to affect legislation,” he said. “And I believe we can achieve that as long as we have a dialogue.”