Senate Republicans on Thursday dramatically curtailed the historic filibuster and stripped Democrats of their ability to block Judge Neil Gorsuch from the Supreme Court – thus ensuring his confirmation, securing an important Trump administration victory and shaping future nominations in ways yet to be seen.
In a far-reaching move, Republicans by a party-line 52-48 vote removed the power of senators to conduct traditional filibusters against not just Gorsuch but also all future Supreme Court nominees.
The rules change means nominees will need only a bare majority of votes to reach the high court, instead of the 60 required for cloture, or limiting the endless debate known as a filibuster.
The rules revision, enacted through what many call the “nuclear option,” sets Gorsuch up for confirmation Friday. All 52 Senate Republicans will vote for the Colorado native, as will a handful of Democrats. The GOP lawmakers changed the rules following an earlier vote Thursday, in which 44 Democrats stayed unified to keep their anti-Gorsuch filibuster going.
“It’s a situation we can’t abide,” said Sen. Chuck Grassley, R-Iowa, the chair of the Senate Judiciary Committee.
Senate Majority Leader Mitch McConnell, R-Ky., added that Democrats kept “raising the stakes and moving the goalposts” and that “we need to restore the norms of the Senate.”
With his confirmation now all but guaranteed Friday, the 49-year-old Gorsuch is poised to join within days a court that’s been shorthanded since the February 2016 death of Justice Antonin Scalia. Republicans kept the vacant seat open all last year by refusing to consider then-President Barack Obama’s nominee, Judge Merrick Garland.
“It was far worse than a filibuster,” Sen. Richard Blumenthal, D-Conn., said of last year’s Republican maneuver.
Angry over Garland’s treatment, and urged on by motivated liberal activists, Democrats undertook what Republicans called the first-ever “partisan” filibuster of a Supreme Court nominee. A successful 1968 filibuster against the promotion of then-Justice Abe Fortas to chief justice was led by members of both parties, who were concerned about alleged ethical improprieties.
In 2006, an attempted Democratic filibuster against Supreme Court nominee Samuel Alito was overcome by a bipartisan vote of 72-25.
In Gorsuch’s case, Democrats further dramatized their unhappiness by demanding additional procedural votes Thursday. One, Sen. Jeff Merkley of Oregon, spoke for more than 15 hours from Tuesday night through Wednesday morning. Another, Sen. Dianne Feinstein of California, reported that 83 percent of the 112,309 phone calls, emails and letters her office has received from Californians about the nomination opposed Gorsuch.
“The answer isn’t to change the rules, it’s to change the nominee,” said Senate Minority Leader Chuck Schumer, D-N.Y.
The rules change pushed by McConnell on Thursday enables 51 senators to end a filibuster of a Supreme Court nomination. For now, filibusters on legislation will still require the standard 60-vote threshold to be overcome.
No one in the Senate Republican Conference, no one, has ever filibustered a Supreme Court nominee.
Senate Majority Leader Mitch McConnell, R-Ky.
The rules change for Supreme Court nominations, though, also sparked bipartisan fears that the Senate’s fundamental character has been undermined. Significantly, Sen. Lindsey Graham, R-S.C., and others predicted that Supreme Court nominees will no longer need to appeal to moderates.
“Now that we’re entering an era where a simple majority decides all judicial nominations, we will see more and more nominations from the extremes,” said Sen. John McCain, R-Ariz., adding that he supported the rules change “with great reluctance.”
The Senate sets its own rules. In 1917, senators instituted the cloture process as a way to end filibusters on legislation. In 1949, senators added the ability to end a filibuster on judicial nominations.
In 2013, when they held the majority and were facing Republican obstructions, Democrats invoked the nuclear option and prohibited filibusters against lower-level judicial and executive branch nominations. The move, blasted by McConnell and other Republicans at the time, enabled three of Obama’s nominees to win seats on the influential U.S. Court of Appeals for the District of Columbia Circuit.
“The Senate is a living thing, and to survive it must change, as it has over the history of this great country,” then-Senate Majority Leader Harry Reid, D-Nev., said at the time.
With the further filibuster restrictions adopted by Republicans on Thursday, lawmakers who take the long view warn that additional Senate traditions, including the ability to filibuster legislation, might also falter when majority leaders face governing frustrations of their own.
“I’m afraid we’re on a slippery slope,” McCain told reporters Tuesday.
The “nuclear option” executed Thursday referred not to the confirmation filibuster itself but rather to the Republicans revising an interpretation of Senate rules by a simple majority vote.
While making it much easier to cut off endless debate by lowering the so-called “cloture” requirement to 51 votes, the maneuver also keeps intact other aspects of the filibuster for judicial nominations so that, technically, it still exists, albeit in a watered-down form.
“I’m not happy about where we are,” said Sen. Orrin Hatch, R-Utah, a former chairman of the Senate Judiciary Committee, who then went on to blame Democrats.