The “nuclear option” is a phrase that has been thrown around in recent weeks, but what exactly is it?
Every now and then we get so many questions in our inbox on a certain subject that it’s hard to either ignore or just sneak it into another topic. That’s why we created this feature “We Explain…”, in which we answer your said questions about… whatever it may be in the world of politics. It’s kind of like mansplaing, but hopefully it’s something you want us to explain to you. As always, if you have any questions you want us to answer, send them at contact[AT]thepostturtle.com!
In this installment we explain what it means when Republicans say they’re ready to use “the nuclear option” to nominate President Donald Trump’s SCOTUS pick, Neil Gorsuch, into the Supreme Court?
A few months ago, President Trump told Senate Majority Leader Mitch McConnell to “go nuclear” if the Democrats decide to filibuster his Supreme Court nominee.
Most people took that as President Trump just being his hyperbolic self, yet in reality, the “nuclear option” is something that actually exists in the Senate rules! However, to understand the GOP’s “nuclear option”, you have to first understand how a SCOTUS pick gets voted on in the Senate.
As you may know, after the president picks their Supreme Court nominee (in this case President Trump picking 10th Circuit Appellate Court Judge Neil Gorsuch), the nominee then has to answer questions in front of the Senate Judicial Committee (think of it as a job interview of sorts). Now when that process is done, the Senate votes on whether to confirm the SCOTUS nomination to the Supreme Court. This is where it can get tricky.
At this point, for Gorsuch to be nominated by the Senate, Republicans would need 60 votes. Anything less than 60, the Democrats will try to filibuster and block the nomination of Gorsuch. For those that aren’t caught up in their parliamentary procedure, a filibuster is a tactic that extends the floor debate until someone either switches sides or they cancel the vote entirely. So when you see stuff like this:
The senator (or senators) are putting up a filibuster.
In the above example, Sen. Ted Cruz reads Green Eggs and Ham – or anything really – to filibuster the passage of the Affordable Care Act (aka Obamacare) at the time. And the only way to override the filibuster? Yup, a 60 vote majority!
Currently Republicans have a 52 to 48 majority in the Senate, so that means if they want to avoid a Democratic filibuster, they’ll have to get eight Democrats to back the nomination of Gorsuch to the Supreme Court. However, if Senate Republicans can’t get the supermajority of 60 votes to override a filibuster from the Democrats, they do have another parliamentary tactic called the nuclear option!
The nuclear option is a parliamentary rule that allows the Senate’s Presiding Officer of the United States – that usually means either the Vice-President or a longtime US Senator – to put any issue to a majority vote. Essentially the nuclear option fundamentally changes the parliamentary procedure in the Senate by doing away with the three-fifth’s majority needed (ie 60 Senators) to pass a particular action and makes it from that point on a simple majority. So as you can guess, it’s called “the nuclear option” because it’s a pretty extreme procedure for the Senate to employ.
However, you’re probably asking, “why doesn’t the ruling party in the Senate always use the nuclear option whenever there’s pushback?” Because the ruling party doesn’t always stay the ruling party! For example, when four years ago the Democrats deployed the nuclear option.
In 2013, Senate Democrats deployed the nuclear option when it came to appointing executive branch nominations and federal judge appointees from the Obama administration. At the time, Senate Republicans were blocking many judgeships that President Obama had made and Democrats felt that the opposition was not in good faith. The move was unprecedented at the time and ended up hurting the Democrats today because now Republicans are the ruling party in the Senate. That meant many of President Trump’s more controversial cabinet nominees – like Secretary of Education Betsy DeVos – just needed a simple majority to be confirmed.
As of this writing, Supreme Court nominations and legislation still need a 60 vote majority to get passed. But that might change if Senate Democrats are willing to block the Gorsuch nomination. For Senate Republicans, they have to decide if the Gorsuch nomination is worth enacting the nuclear option and fundamentally change the passing threshold for confirming a SCOTUS nominee by having to only get a simple majority in the Senate. Yet, that puts Republicans in a real awkward position.
While they get a conservative Supreme Court judge with a Gorsuch nomination, there is no guarantee that there will be a Republican president when the next SCOTUS judge needs to be nominated. With that said, if Senate Democrats force their Republican counterparts to use the nuclear option, it looks like they’re willing to call their bluff.
(Photo Credit: Pixabay.com)