Here’s What Will Happen When the Senate Goes ‘Nuclear’ to Confirm Gorsuch

By Laura Litvan

April 4, 2017

The Senate’s “nuclear option” is a monumental event, but the procedure itself is quite mundane.

Democrats are threatening to block Neil Gorsuch’s nomination to the Supreme Court. Republicans say they have the votes to change the Senate’s longstanding rules and push President Donald Trump’s nominee through.

The action is expected to play out on Thursday morning, when as many as 43 Democrats in the 100-member Senate will vote against ending debate on Gorsuch. Under the current rules -- where the nomination would require 60 votes -- that would be the end of it. Majority Leader Mitch McConnell is going to change that.

As soon as Gorsuch is blocked, McConnell likely would ask for a new vote to end debate on the judge’s confirmation. Those Democrats would again vote no.

That’s when it goes nuclear: McConnell could raise a “point of order” asserting that only a simple majority is required to end debate on high court nominees, not the usual 60 votes. If everything plays out as expected, McConnell would ultimately win on that point -- and it would clear the way for Gorsuch’s approval.

The exact order of the next steps could vary. McConnell mostly likely will draw from a 2013 Democratic parliamentary playbook, when then-Majority Leader Harry Reid invoked the nuclear option for executive branch and lower-court nominees.

During that fight, Democratic Senator Patrick Leahy, wielding the gavel, overruled Reid on the point of order, citing the rule requiring 60 votes. Then Reid appealed to the full Senate, with all sides knowing he had the votes from his Democratic majority to win. The Senate voted 52-48 to overturn Leahy’s ruling -- and the 60-vote threshold for most presidential nominees was abolished.

The threshold "is now a majority. That is the ruling of the chair," Leahy said.

Back then, McConnell, as the minority leader, said that if Reid went through with changing the rule, he would “be remembered as the worst leader of the Senate ever.”

Now, McConnell will be the one calling the same shots. If McConnell prevails, then the GOP can confirm Gorsuch -- and any future Trump high court nominees -- with a simple majority vote.  

"Either way we’ll be moving to confirm him on Friday," McConnell told reporters Tuesday.

57-Day Blockade

Senators have long prided themselves for belonging to what is often called the world’s greatest deliberative body. Majority parties frustrated by minority intransigence have occasionally threatened to end the filibuster -- but actually doing it is a rarity.

Senators in 1964 began regularly using the so-called cloture rule, adopted in 1917, to stop debate after ending the record 57-day filibuster of civil rights legislation. Since then, the minority party has increasingly used filibusters as a way to block or delay bills or nominations.

In 1975 senators lowered the threshold to cut off debate to 60 from 67. If this week unfolds as expected, the only remaining filibuster rule would be the one requiring 60 votes to advance legislation.

McConnell said Tuesday that not a single Republican senator supports changing the filibuster for legislation.

“We all understand that’s what makes the Senate the Senate,” he told reporters.

Even so, both Republicans and Democrats know that changing the rules for Supreme Court nominees will make the Senate and the high court more partisan, and the finger-pointing is in high gear.

“Democrats are being pushed by far-left interest groups into doing something detrimental to this body and for our country,” McConnell said on the Senate floor Tuesday morning. “They seem determined to head into the abyss and taking the country with them.”

Senate Minority Leader Chuck Schumer said it’s up to Trump to produce a nominee who can get the 60 votes needed to clear a filibuster. Republicans "have to confront a simple choice,” he said. “Are they willing to break the rules of the Senate, or can they work with us on a way forward?”

‘Clearly Going to Happen’

Some Republicans say they’re not comfortable with the vote to change the rules, but say it will go through if the week unfolds as expected. McConnell will need 50 of the Senate’s 52 Republicans to back him on the rule change because he can count on Vice President Mike Pence to cast a tie-breaking vote.

“I don’t know what I’m going to do on the rules change personally, but it’s clearly going to happen,” said Senator Susan Collins, a Maine Republican. “If it’s necessary in order to get him confirmed, I may have to vote that way. But I certainly don’t want to.”

If the rules are changed Democrats will have a lot less power, but they can retaliate by slowing down Senate work, as Republicans did for a while after Reid’s move in 2013.

Democrats can hold up committee work by refusing to attend. In the full Senate, even routine activities like allowing senators to give brief floor speeches need consent from all members. Democrats could gum up the works by demanding a full vote to give consent for any type of action, no matter how trivial.