The “Nuclear Option”: What It Is And What You Need To Know
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Shortly after President Trump’s inauguration in January, he appointed Neil Gorsuch to the Supreme Court of the United States, believing he was a fair jurist and the most well fit for the lifetime position. Ever since the appointment, Democrats have tried to block his confirmation. Many have speculated that they are retaliating for Senate Republican’s failure to give Merrick Garland a confirmation hearing after former President Obama appointed him to Justice Scalia’s open seat last March. With Senate Democrats threatening a filibuster of the vote on Gorsuch, Republicans have threatened to take advantage of the “nuclear option.” Here’s what it is, and what you need to know.
The nuclear option is a parliamentary procedure allowing the Senate to override a rule or precedent with a simple majority. The Senate’s presiding officer rules that the validity of a Senate rule or precedent is a constitutional question, which takes the issue to the full Senate, deciding by majority vote.
Currently, the minority party may filibuster a Supreme Court nominee’s confirmation vote, requiring 60 votes to end the filibuster. The nuclear option would allow the Senate to vote and decide, any issue, even a filibuster, with 51 votes. If they take advantage of the nuclear option, Gorsuch’s Supreme Court confirmation would require only 51 votes. This means Senate Republicans could end a filibuster and confirm Gorsuch with a simple majority.
Currently, Republicans hold 52 seats in the Senate, making the nuclear option a plausible threat to Senate Democrats. Their power as minority party lies in their ability to filibuster a confirmation, which Majority Leader Senator McConnell has vowed to change should Democrats try to do so. Senator Schumer has promised to filibuster Gorsuch’s confirmation.
The last time the nuclear option was used was in 2013 by then Majority Leader Harry Reid. Democrats held a majority, but not a supermajority, much like Republicans today. In this exercise, Democrats changed Senate rules so that federal judicial nominees and executive office appointments can move to confirmation votes with a simple majority of 51 votes, instead of a 60 vote supermajority. This nearly ensured that any president with a majority in the Senate would have their nominees approved. However, this change did not apply to Supreme Court nominees.
Should Senate Republicans take advantage of the nuclear option in this circumstance, it would change Senate proceedings on Supreme Court nominees for years to come, making the confirmation of Supreme Court Justices a simple majority vote, thus stripping the minority party of their power in confirmation.
As of March 30th, two Democratic Senators, Manchin of West Virginia and Heitkamp of North Dakota, have expressed support of Gorsuch. Senator Manchin said “I hold no illusions that I will agree with every decision Judge Gorsuch may issue in the future, but I have not found any reasons why this jurist should not be a Supreme Court Justice.” Senator Heitkamp echoed saying she was taught that “two wrongs don’t make a right” and “regardless of which party is in the White House, the U.S. Supreme Court should be above politics.” Republicans are hoping to sway a few more Democrats their way in the coming days to prevent using the nuclear option, and altering Senate rules.
As of now the Senate is scheduled to vote to confirm Gorsuch on April 7th, giving Republicans another week to gain allies, and secure votes from Democrats. Keep watching the news to see if Republicans take advantage of the nuclear option, and to see what it will mean for the future of the Supreme Court and our republic.
FFL Cabinet Member
Corrie is a Cabinet Member at FFL. She is passionate about coffee, Jesus, and lipstick, and never wears white after Labor Day. If she isn't busy talking about law school or FFL, you can find her studying constitutional law or reviewing a contract. Her plan A is Super Mom turned Supreme Court Justice, and she hopes to one day be just like Sandra Day O"Connor.
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