Will Mitch McConnell go down in history as the Senate majority leader who killed the filibuster for Supreme Court nominees?
Democrats might try to spin it that way, and Republicans might counter that Democrats started it. Don’t believe the hype.
The Senate has changed its rules throughout its history to make things move faster. Senate scholars say McConnell’s move to invoke the “nuclear option” for Supreme Court nominee Neil Gorsuch Thursday is the inevitable result of a “parliamentary arms race” that goes back decades and has sped up recently.
“I don’t think it will be the high-water mark of institutional change in the Senate,” said Sarah Binder, a professor of political science at George Washington University. “It’s a very long, slow march toward majority rule.”
Cloture, or a supermajority vote to end debate, began only in 1917, born of President Woodrow Wilson’s frustration with Senate obstruction on World War I legislation. It then required 67 votes out of 100.
The Senate lowered that to 60 in 1975, after Southern Democrats had used the filibuster to block civil rights legislation.
In the 1980s, 100 hours of post-cloture debate — one hour per senator — became 30 hours, where it stands today. The Senate began its latest 30 hours of debate Thursday afternoon. If all the time is used, senators will take a final vote on Gorsuch on Friday afternoon.
He’ll need 51 votes for confirmation, which is assured, since Republicans control 52 seats.
The big hurdle for Gorsuch came Thursday, when McConnell detonated the nuclear trigger.
This latest procedural battle began in 2013. Frustrated by Republican obstruction, Democrats, then led by Harry Reid of Nevada, invoked the nuclear option and lowered it again to a simple majority for lower court nominations and administrative appointments.
Binder said McConnell basically finished what Reid had started.
“It was always technically possible,” she said. “Reid lowered the political cost for McConnell to do it today.”
By going nuclear, McConnell is following a trend started by his fellow Kentucky statesman Henry Clay in 1841, who threatened to change Senate rules over — sound familiar? — obstruction from Democrats.
Whig leader Clay, remembered as a great compromiser, threatened to change the rules when Democrats blocked a banking bill in 1841. They eventually backed down.
Burdett Loomis, a political science professor at the University of Kansas, said McConnell would be remembered for setting a precedent: that the Senate could ignore a president’s Supreme Court nomination.
Within hours of conservative Justice Antonin Scalia’s death in early 2016, McConnell said the Senate would not consider any nominee of President Barack Obama’s to succeed Scalia. Obama’s nomination of Judge Merrick Garland languished in the Senate until Obama left office. Garland never got a hearing or a vote.
McConnell’s move infuriated Democrats, and that’s at least part of the reason they attempted to block a vote on Gorsuch.
“The wound over Garland will be raw for a very long time for Democrats,” Binder said.
Loomis said McConnell had created a precedent for holding a Supreme Court seat open for a year, and it set the stage for going nuclear.
“In historic terms, not bringing the Garland nomination up to a vote is at least as significant,” he said. “They are tied together.”
Binder said that back in the less partisan 1980s, Democratic leader Robert Byrd of West Virginia, regarded as the father of the modern Senate, took some smaller tactical nuclear actions when faced with obstruction.
For example, he consolidated two procedural motions into one to bring items on the Senate calendar to the floor, a move that eliminated a filibuster opportunity. McConnell used the same modified procedure this week to call up Gorsuch.
“Senate leaders have long understood that the filibuster limits their ability to push forward an agenda,” Binder said.