The Senate voted to confirm Judge Neil Gorsuch to the Supreme Court Friday — though they couldn’t have done it without triggering the “nuclear option” the day before, which allowed his nomination to advance with a simple majority.
That’s because, on Thursday, Democrats voted to filibuster Gorsuch’s nomination, and Republicans couldn’t come up with the necessary 60 votes to overcome that filibuster. If Senate rules were adhered to, Gorsuch’s nomination would have been blocked right there.
But Republicans refused to accept no for an answer, and responded simply by changing the rules so that 60 votes were no longer needed to advance a Supreme Court nomination. So, the nomination advanced, and now Gorsuch has been confirmed, with 51 Republicans and 3 Democrats voting for him.
The GOP move wasn’t unprecedented — it mirrored a move Senate Democrats made for other presidential nominations in 2013. It was still, however, very unusual, which is why it’s called the “nuclear option.” (It has that name because, well, senators really, really like their rules, and therefore consider breaking them to be essentially as horrific as setting off a nuclear bomb.)
So among the fallout, Gorsuch will join the Supreme Court. On the surface, this fight has just been about him, and about whether a conservative should once again occupy the vacant seat last filled by Justice Antonin Scalia, who died last February. This will essentially return the Court to the status quo of the past decade and ensure that the majority will remain out of liberals’ hands.
The bigger picture, though, is that the showdown over Gorsuch’s nomination marks the culmination of decades of increasing political polarization around the judiciary and in American politics more broadly — polarization that has placed some American institutions under serious strain.
Presidents used to receive a good deal of deference from the Senate about qualified Supreme Court picks except in cases of extraordinary personal scandal, but that’s no longer the case.
The new reality is that most Democrats simply can no longer accept confirming a solid conservative to the Supreme Court. And the failed nomination of Merrick Garland similarly shows most Republicans no longer can accept confirming a solid liberal.
And though so much about American politics revolves around Donald Trump these days, this is one situation that really doesn’t. Though Trump’s unpopularity is one factor that hurt Gorsuch’s ability to win over Democrats, the political system has been headed toward this showdown for a very long time.
1) Who is Neil Gorsuch?
Neil Gorsuch is a 49-year old judge from the 10th Circuit Court of Appeals, to which he was nominated by George W. Bush in 2006. Before that, he worked at a boutique Washington, DC, litigation firm and for Bush’s Justice Department. His mother was Environmental Protection Agency administrator under President Reagan. Gorsuch has been well-regarded in conservative legal circles for many years.
His judicial record, as Dylan Matthews writes, indicates that he is “a down-the-line conservative” who often sides with corporations and Christian groups in contentious cases. While he has taken no public position on the Roe v. Wade decision protecting abortion rights, his writings seem to indicate he’d sympathize with the pro-life cause. So he would likely vote with the conservative justices — Clarence Thomas, Sam Alito, and usually John Roberts and Anthony Kennedy — on most politically charged topics.
Importantly, though Gorsuch was nominated by President Trump, his nomination is rather noteworthy for how un-Trumpy it is. Indeed, Gorsuch could easily have been nominated by President Jeb Bush, President Marco Rubio, President Ted Cruz, President John Kasich, or really any Republican president.
That’s because, in a savvy move to win over skeptical conservatives during the campaign, Trump promised to fill the Scalia vacancy only with someone on a preselected list of judges (first 11, later expanded to 21) released by his campaign. These lists were crafted in close consultation with conservative activist groups such as the Federalist Society and the Heritage Foundation, with an eye toward ensuring conservatives would be satisfied by any name on there.
2) Why is Gorsuch’s nomination controversial?
The Democratic case against Gorsuch has nothing to do with his qualifications. In many ways, Gorsuch seems to be one of the least objectionable nominees Democrats could expect out of Trump — he has no known relationship with the president (meaning he’s not a Trump crony), and he seems less extreme than many others on Trump’s lists. (Sen. Claire McCaskill (D-MO) was recently recorded telling donors that “Gorsuch was one of the better ones” of the available options.)
Instead, the main reason Democrats are opposing Gorsuch’s nomination and Republicans are so enthusiastically supporting it is that both parties believe he will be a solidly conservative vote on the Court.
Most Democrats simply do not want to confirm a justice who they think would be inclined to vote against abortion rights, LGBTQ rights, voting rights, workers’ rights, and campaign finance restrictions in contentious cases.
Beyond that, Democrats remain resentful over the fact that Republicans blocked President Obama’s pick to fill this seat, Judge Merrick Garland.
Garland was viewed as a moderate liberal, and his qualifications were difficult to dispute. But when Obama nominated him last year, the Republican-controlled Senate refused to even consider the pick. Majority Leader Mitch McConnell came up with the contrived justification that a president in his final year shouldn’t be permitted to fill a Supreme Court seat, something it’s impossible to believe he would argue if the president were a Republican.
Democrats viewed the treatment of Garland as a partisan travesty, and as a result even senators of moderate temperament, like Tom Carper of Delaware, were in no mood to help out Republicans here. “I am left with no other choice but to oppose Judge Gorsuch’s nomination until we find agreement on moving Judge Garland’s nomination forward at the same time,” Carper said in a statement.
Finally, there’s the Trump factor. The president is so unpopular among and distrusted by liberals that essentially any lifetime appointment from him would be a tough sell to Democrats, no matter who it is. Indeed, Sen. Elizabeth Warren (D-MA) has said that no Trump nominee should be confirmed while the FBI investigation into his associates and Russia is ongoing. Other Democrats simply want to deny the president an “easy win” and view opposing anything he does as good politics.
3) Is it unusual for Democrats to filibuster Gorsuch?
For nearly half a century, no Supreme Court nomination with the clear support of a majority of senators — as Gorsuch has — has ever been blocked from a floor vote with a filibuster. The only comparable situation is the filibuster of Abe Fortas’s nomination for chief justice in 1968, per PolitiFact.
But the long tradition of senatorial deference to the president’s Supreme Court nominees, except in cases of scandal or lack of qualifications, has been deteriorating for decades.
For instance, in 1987, a Democrat-controlled Senate voted down President Reagan’s nomination of Robert Bork by 42-58 even though Bork had strong formal credentials for the job and a reputation for brilliant legal scholarship. The Democratic critique of him was based on what they argued was his extreme ideology. (Six Republican senators, it should be noted, were persuaded enough by this critique to vote against Bork.)
Still, the norm was for nominees who didn’t have controversial backgrounds or hadn’t faced personal scandal to sail through the Senate smoothly. Antonin Scalia, Anthony Kennedy, David Souter, Ruth Bader Ginsburg, Stephen Breyer, and John Roberts all got 78 votes or more in favor of their confirmations.
And even in the two closest confirmation votes of recent decades — Clarence Thomas’s 52-48 confirmation in 1991, and Samuel Alito’s 58-42 confirmation in 2006 — the filibuster wasn’t used to block them. The norm at the time was that Supreme Court nominees should face an up-or-down final vote, rather than being bottled up with the filibuster.
However, as polarization in American politics intensified, activists in each party became convinced that their partisan allies in the Senate weren’t doing enough to block what they viewed as bad Supreme Court nominations.
So due to conservative pressure, the margins for President Obama’s first two Court nominees were closer than usual, with Sonia Sotomayor being confirmed 68-31 and Elena Kagan being confirmed 63-37, even though they were both filling seats occupied by liberals.
And when Scalia died last year, the prospect of returning to a Court with a five-justice liberal majority struck terror into the hearts of many conservatives, who feared sweeping new “liberal activist” rulings. So McConnell refused to even consider the Garland nomination. That satisfied his base but degraded the Senate’s norms on Supreme Court nominations even further.
4) What is the nuclear option?
The Senate adheres to an elaborate set of rules and precedents about just what it can and can’t do. Those rules give the minority several tools to delay or block measures it doesn’t like.
However, a determined majority of the Senate can also vote to break — or change — the chamber’s rules. This is what’s known as the “nuclear option.”
Now, when the nuclear option comes up, it’s usually because senators want to limit or eliminate the power of one of those useful tools for the minority in particular — the filibuster. So let’s recap how the filibuster works.
- If a bill or nomination comes for a final vote before the Senate, it can pass with a simple majority.
- However, to actually get to that final vote, Senate rules require the chamber to approve what’s known as a “cloture motion” cutting off debate on the topic.
- This is important because any member of the minority can try to block a cloture motion by using a filibuster.
- And to overcome the filibuster for a bill or Supreme Court nomination (or until 2013, any nomination), support of a majority of senators isn’t enough. Instead, 60 Senate votes — three-fifths of the chamber — are needed.
Because of that higher threshold for success, in recent years the cloture vote has essentially become the real vote determining whether something will pass. It’s no longer just used in extraordinary circumstances — instead, it’s become the main way the minority flexes its muscles in the Senate.
The catch is that if the majority believes the minority is abusing its filibuster power — say, by blocking nominees who they think are qualified, or blocking every nominee for a certain post — they have the threat of the nuclear option in reserve.
So the Republican-controlled Senate of 2005 threatened to use the nuclear option because they thought Democrats were filibustering too many of George W. Bush’s appellate court nominees.
And the Democrat-controlled Senate of 2013 actually did use the nuclear option to effectively eliminate the filibuster for all nominations except Supreme Court ones. (This was in response to the apparent GOP desire to filibuster anyone Obama planned to nominate to the DC Circuit Court of Appeals, as well as what Democrats saw as excessive Republican filibusters against nominees generally.)
5) How does the nuclear option actually work?
When then–Senate Majority Leader Harry Reid used the nuclear option in 2013, the specifics of what he did are complex. (They’re laid out in greater detail in this Congressional Research Service report.) But the basics were:
- Reid raised a “point of order” that simply asserted that cloture votes for all nominations except the Supreme Court could pass with a simple majority, even though the Senate rules said otherwise. (This is the rules change he is trying to ram through.)
- The senator presiding — the “chair” — ruled against him, because, well, that’s not what the rules said. The rules said you needed three-fifths, not just a majority, to pass a cloture motion.
- Reid appealed to the full Senate to overturn the chair’s ruling.
- A majority of senators (52 of the 55 Democrats) voted with Reid that the chair’s ruling should in fact be overturned.
And that was it. That vote effectively changed the Senate’s rules by overruling the chair to set a new precedent. From then on, cloture votes for all nominations except the Supreme Court could pass with a simple majority — meaning a filibuster from a minority of senators could no longer stop them.
On Friday morning, McConnell followed essentially the same playbook — this time, with every Senate Republican joining him. No Democrats came along.
(One important note: The rules change only applies to Supreme Court nominations. It does not eliminate the filibuster for legislation. No one is seriously discussing that at this point... not yet, at least.)
6) Was there a Democratic debate over provoking a nuclear confrontation?
After Gorsuch was nominated, there was a quiet internal debate in the Democratic Party about whether filibustering him would in fact be a good idea.
While the stakes of any Supreme Court fight are high — the nominations last for life, and it’s easy to imagine the 49-year old Gorsuch sitting on the Court for decades — the stakes of some Supreme Court fights are higher than others.
Since Gorsuch has been nominated to fill Scalia’s seat, if he does end up voting comparably to Scalia, the Supreme Court would then revert to essentially the ideological balance it had back in February 2016. Liberals obviously wouldn’t be thrilled with this outcome, but it’s not like it would bring the Court into wildly new or unprecedented territory.
What Democrats are far more afraid of is the next Supreme Court opening, which could conceivably involve one of the Court’s liberals, like 84-year-old Ruth Bader Ginsburg or 78-year-old Stephen Breyer. It could also involve 80-year-old Anthony Kennedy, who is often the Court’s swing vote and has sided with the liberals on topics like abortion rights and LGBTQ rights.
If Trump replaced Kennedy, Ginsburg, or Breyer with a hard-line conservative, the Court would move further to the right ideologically than it’s been in decades — probably in more than half a century. Cherished liberal precedents such as Roe v. Wade could then be at risk.
So some Democrats argued that it would be smarter strategically to let Gorsuch through in order to ensure sure the filibuster is still around for the next, far more important, fight. McCaskill, a moderate in a state Trump won big, made this argument to donors in audio leaked to Bryan Lowry of the Kansas City Star:
So they move it to 51 votes and they confirm either Gorsuch or they confirm the one after Gorsuch. ... They go on the Supreme Court and then, God forbid, Ruth Bader Ginsburg dies, or [Anthony] Kennedy retires or [Stephen] Breyer has a stroke or is no longer able to serve. Then we’re not talking about Scalia for Scalia, which is what Gorsuch is, we’re talking about Scalia for somebody on the court who shares our values. And then all of a sudden the things I fought for with scars on my back to show for it in this state are in jeopardy.
The obvious counterargument here is that if the filibuster is left intact for the next Supreme Court fight, wouldn’t Republicans just use the nuclear option then? Jonathan Chait makes a version of this case, arguing that Republicans have already proven they’re unwilling to accept the filibuster being used to block any GOP nominee.
Still, it is at least possible that moderate Republican senators would have a tougher time stomaching the use of the nuclear option to seat a justice who they think would provide a fifth vote to overturn Roe v. Wade, compared with using it to seat a qualified conservative who is merely filling Scalia’s seat.
7) But Democrats filibustered Gorsuch despite this. Why?
In the end, though, just four Democrats — Sens. Joe Manchin (D-WV), Heidi Heitkamp (D-ND), Joe Donnelly (D-IN), and Michael Bennet (D-CO) — refused to filibuster Gorsuch. When added to the 52 Republicans all backing the nominee, that was four away from the 60 votes required to overcome the filibuster.
Still, since Republicans clearly had the votes to confirm Gorsuch with the nuclear option, it looks like Democrats mounted a losing battle here that could come back to bite them in the future, which seems puzzling to some political observers. Sahil Kapur of Bloomberg has one take on what Democrats are thinking:
1. Payback for Garland— Sahil Kapur (@sahilkapur) April 3, 2017
2. Mobilize the D base
3. Deny Trump an easy victory
4. Confirm more liberal justices next time they're in control https://t.co/uH40UuoMhK
But Washington Post reporter Paul Kane doesn’t buy the logic. “There is no plan. It’s just screaming into the wind,” he tweeted. “They’d rather show base that they filibustered than do nothing.”
There is an element of truth to this. All year, Senate Democrats have been hammered by their base even for voting to confirm Trump’s most uncontroversial Cabinet appointments. Fundamentally, it’s just difficult for a party saying it’s trying to #resist Trump to explain why it’s confirming Trump’s Supreme Court nominee.
Even McCaskill, one of the most vulnerable Democratic senators up for reelection next year, ended up announcing that she would in fact vote to filibuster Gorsuch, despite her sympathies with the “let Gorsuch through” argument. And her decision, announced shortly after her private musings on the issue leaked, is revealing.
Even if you buy the logic of the “let Gorsuch through” case, which is hardly airtight, complicated strategies like this are difficult to communicate to activists and base voters who are making the reasonable point that Neil Gorsuch seems like a very conservative judge whom they’d prefer not to have on the Supreme Court. The easier option for a Democrat — even, apparently, for some Democrats in red states — is to just vote no rather than risk being tagged as too supportive of Trump.
In the end, the Supreme Court filibuster is a relic of a less partisan and less polarized era. It hasn’t even been used in nearly half a century, so it’s hard to believe it will be missed all that much. Today’s Senate will find, just as the chamber did in 2013, that after the nuclear button is pressed, life goes on.