Senate Nukes Filibuster for Supreme Court Picks

With Democrats promising to use the filibuster to block the nomination of Judge Neil Gorsuch to the Supreme Court, Senate Republicans on Thursday afternoon triggered the so-called “nuclear option” and abolished the upper chamber’s 60-vote threshold for appointments to the high court.

It took a series of parliamentary maneuvers, but the end result is the establishment of a new precedent allowing future Supreme Court nominees to be confirmed by the Senate with a simple majority vote (as has been the case for all other federal court appointments since the Democrats similarly changed the rules in 2013).

The final vote on the rule change was 52-48, along party lines. The vote does not confirm Gorsuch, but clears the way for an expected confirmation vote Friday.

Brinkmanship over the Senate’s filibuster for presidential court picks has been as much about assigning blame than anything else. Republicans say Democrats lit the fuse for the nuclear option in 2013, when then-Majority Leader Harry Reid (D-Nevada) changed the rules to block a Republican filibuster of some of President Barack Obama’s federal court nominees. Democrats blame Republicans for refusing to give Obama’s Supreme Court nominee, Merrick Garland, a hearing or a vote last year and forcing Gorsuch through without getting the requisite 60 votes to avoid a filibuster. Both sides will surely try to raise money and make campaign ads out of Thursday’s vote.

That 60-vote threshold has always been something of an illusion, since any majority coalition of senators could have abolished it at any time. The filibuster is a great protection against majoritarianism, but it has survived this long—ironically—because no majority ever decided to kill it and no minority was ever foolish enough to goad the majority into doing so. (Fans of the filibuster will be happy to know there seemingly is little appetite for eroding its use in legislative matters, as Dave Weigel reports)

Democrats very well may wish that they still had the filibuster at their disposal when the next Supreme Court nominee comes before them. With Trump in office for the next four years and a difficult electoral map facing them in 2018, they may be in the minority for some time, and Trump’s next appointee may not be as agreeable as Gorsuch.

For that matter, it’s not hard to imagine a future moment when Republicans, too, will look back at today and wonder why they disposed of the filibuster. A future, progressive president with a liberal majority in Congress will be able to push judicial nominees that stretch the Supreme Court far beyond its traditional middle-of-the-road political views.

And that’s the only thing we can say with any certainty about today’s vote: that it will drive our politics further to the edges of the mainstream. Whether that is for good or for ill depends on your individual point of view, but the truth is that both sides will now be able to approve lifetime nominees to the Supreme Court based on the outcome of the most recent election cycle, rather than having to find consensus candidates that could win support across the Senate’s center aisle. The consequences of triggering the nuclear option, I think, will not be fully known for a long time.