The months-long showdown over Supreme Court nominee Neil Gorsuch culminated on Thursday as predicted: Senate Majority Leader Mitch McConnell (R-KY) triggered the so-called “nuclear option” to eliminate the rule requiring 60 votes to confirm Supreme Court nominees. That paves the way for Gorsuch’s confirmation with just 51 Republican votes.
The decision was lamented by senators on both sides of the aisle — even from Republicans who thought doing so was a necessary evil, given Senate Democrats’ pledge to filibuster Donald Trump’s nominee.
“This is a body blow to the institution,” Sen. John McCain (R-AZ) told reporters on Wednesday. “I think we’re on a slippery slope.”
Senate Minority Leader Chuck Schumer (D-NY) sounded just as upset in a speech on the floor Thursday morning: “It’s the most extreme measure with the most extreme consequences. In 30 or 40 years, we will sadly point to today as a turning point in the US Senate, where we irrevocably moved away from the principles the founders intended for us.”
Added Sen. Dick Durbin (D-IL): “I’m sorry. I love the Senate. I’ve spent a good part of my life here.”
The bipartisan regret in the Senate over getting rid of the filibuster rule for Supreme Court nominations may seem hard to understand, given that the rule itself — rather than Gorsuch’s nomination itself — has little concrete impact on Americans’ lives.
But there is an explanation for why many members of the Senate are talking about the rule change as an almost personal affront: It is a step toward making the Senate operate in a much more partisan manner, looking a lot more like the House of Representatives. And that’s something nobody in the Senate wants.
The Senate is becoming more like the House
The Senate was designed to insulate its members from political pressures — to give them space to deliberate what’s best for the country a step removed from the popular will. Its members are appointed to six-year terms (as opposed to two years in the House). There are fewer members, elevating the relative importance of each.
“The Senate was meant to be less populist and less partisan,” said Julian E. Zelizer, a historian of the governing body at Princeton University. “It was supposed to be more cerebral, upper-class, and independent from the temper of the electorate, which the House was supposed to reflect.”
Over time, that founding ideal was translated into a set of rules that prized consensus among senators and made dissent paralyzing to its functioning. And those rules gave the minority broad authority to check the majority power: “It was, ‘I won't use all my powers against you, and you in turn won’t use all of your powers against me,’” said former Sen. Fred Harris (R-OK) in an interview.
The most important of these checks is the filibuster, which allows any one senator to speak on the floor until 60 senators vote to cut off debate (through “invoking cloture”) and move to a vote. There are multiple kinds of filibusters. In 2013, former Sen. Harry Reid (D-NV) used the “nuclear option” to kill off the 60-vote threshold for lower-level court appointments. Other forms of the filibuster — most importantly, the one requiring 60 votes to cut off debate on legislation — will remain intact from the Gorsuch vote.
The voting process looks very different in the House, where the Rules Committee has almost complete control over which member gets to offer an amendment and which bills come to the floor for a vote. More importantly, legislation in the House can pass with a simple majority. By contrast, every piece of legislation in the Senate needs to get to 60 votes.
“It’s about checks and balances. The Senate is set up for a longer-term process,” said Sen. Debbie Stabenow (D-MI) on her way to the floor. “I’m very concerned about this change.”
She turned to a frequently cited analogy to explain the importance of the Senate for tempering the more democratic impulses of the House: “There’s the cup in the saucer analogy: You put the hot coffee in the cup, and the saucer gives you the opportunity to cool it down.”
This is why changing the rule over Supreme Court nominations is, in the eyes of many senators, so damaging to their body. It’s not only that many think Supreme Court nominees should require 60 votes to be confirmed. It’s the idea that the filibuster overall will be weakened to the point that the minority party can’t help set the agenda, and therefore their power will be sharply constrained.
In other words, they worry that the Senate will work like the House.
“Compared to being in the House, being in the Senate is like being a kid in the candy store. It’s way more fun. You can do so much more,” says Jane Calderwood, who served as former Sen. Olympia Snowe’s (R-ME) chief of staff for 20 years. “If you take away the filibuster, they become more like the House where it’s just up or down votes.”
Some Senate Republicans are promising that this won’t change the legislative process
The Senate Republicans who led the push to trigger the nuclear option say Senate Democrats are overstating the consequences of doing so. McConnell has emphasized that while the rules may be changing for Supreme Court nominations, he has no plans to change the “legislative filibuster” — the one requiring 60 votes for legislation to get passed.
“We all understand that’s what makes the Senate the Senate,” McConnell told reporters on Tuesday about the legislative filibuster.
Similarly, on his way to the vote Thursday morning, Sen. John Kennedy (R-LA) downplayed the consequences of the rule change for Supreme Court nominations.
“I don’t think it’s going to be the end of civilization. I don’t think the world will spin off its axis,” he said in an interview. “I think both the Republicans and the Democrats respect the traditions of the Senate — and that this will not move this over to the legislative side.”
As he rode the tram to the Capitol, Sen. Roger Wicker (R-MS) gave additional assurances that this was not the beginning of a much broader transformation of the Senate’s rules: “I’m very committed to preserving the filibuster for legislation. There’s a strong bipartisan consensus for that.”
But as Schumer pointed out on the floor, nobody exactly expected the “nuclear option” to be triggered for Supreme Court nominees, either. And given the partisan bitterness that drove the Senate to eliminate one rule protecting the minority, experts think it’s likely more will follow.
“There’s this process of spiraling animosity: The minority abuses its privileges of endless debate, and then the majority retaliates by clamping down,” says Josh Huder, a congressional scholar at Georgetown University. “The Senate was built around consensus lawmaking. And so it’s really straining under this new political reality.”