. . . And Then They Invoked the Nuclear Option: Gorsuch’s Nomination to be Confirmed

On April 6, 2017, Senate Republicans invoked the nuclear option—clearing the road for the confirmation of Supreme Court nominee Neil M. Gorsuch. As a result, Gorsuch’s nomination to the Supreme Court of the United States is expected to be confirmed by a simple majority vote rather than a supermajority of 60 votes.

What Happened?

On the morning of Thursday, April 6, 2017, Senate Democrats launched a filibuster—the first successful partisan filibuster of a nominee for a justice to the Supreme Court.

The U.S. Senate’s rules required that Gorsuch get 60 votes for his nomination to be approved. Currently, Republicans have 52 seats out of the 100 seats. Gorsuch fell short of the 60 votes needed with a 55 to 45 vote (4 Democrats joined 51 Republicans on the first vote to end debate; 3 Democrats joined 52 Republicans on the second vote.). Since the nomination fell short of the necessary 60-vote threshold, Senate Republicans invoked the nuclear option, which is a procedure allowing the Senate to override a rule requiring 60 votes in favor of a simple majority. This means future nominations to the Supreme Court can also advance with a simple majority vote.

Takeaways

According to Harold P. Coxson, a principal with Ogletree Governmental Affairs, Inc. and a shareholder in the Washington, D.C. office of Ogletree Deakins, “Extended debate is what sets the Senate apart from the House—the saucer that cools the overheated cup. The ‘nuclear option’ of changing Senate rules by a simple majority vote (which had previously required a two-thirds vote) occurred when then-Majority Leader Harry Reid initiated the change to eliminate 60-vote filibusters for administration and lower federal court nominees. Now, Majority Leader Mitch McConnell has done likewise for Supreme Court nominees.”

Coxson continued, “Both parties had reason to undertake such changes. But, the character of the Senate is forever changed and both political parties, at some point, will ‘inherit the wind.’ The only vestige of extended debate is now legislative filibusters, which still are permitted.”