Senate’s Supreme Court Nuclear Countdown Reaches Zero

Filibuster of Neil Gorsuch followed by procedural motions triggering ‘nuclear option’

Senate Majority Leader Mitch McConnell, left, is set to use the “nuclear option” to get Judge Neil Gorsuch confirmed to the Supreme Court. (Al Drago/The New York Times/Pool File Photo)
Senate Majority Leader Mitch McConnell, left, is set to use the “nuclear option” to get Judge Neil Gorsuch confirmed to the Supreme Court. (Al Drago/The New York Times/Pool File Photo)
Posted April 6, 2017 at 11:29am

The Senate’s Supreme Court doomsday clock has reached midnight.

Senators voted, 55-45, to limit debate on President Donald Trump’s nomination of Judge Neil Gorsuch to fill the vacant seat on the Supreme Court — short of the 60 votes needed to break a filibuster under precedents in effect as of the opening of business Thursday.

Senate Majority Leader Mitch McConnell voted with the Democrats for procedural reasons, allowing him to reconsider the vote. This will allow him to put in motion changes to precedent, which would reduce the vote total needed to cut off debate to a simple majority.

This has been the expected result of the Democratic blockade of the 10th Circuit appeals court judge, with McConnell having signaled since earlier in the week that he would have the votes to change precedent.

McConnell on Wednesday had pushed for Democratic senators to reconsider their positions on the cloture vote, but that did not happen.

“I hope they’ll consider what their actions would mean for future Supreme Court confirmations. I hope they’ll consider what their actions could mean for the future of this body more broadly,” the Kentucky Republican said. “Because, as we all know, the American people will be watching, history will record the decision Democrats make, and there simply is no principled reason to oppose this exceptional Supreme Court nominee.”

The seat has been open since the death of Justice Antonin Scalia in February 2016, with McConnell holding the seat open so the winner of the last year’s presidential election could make the pick. That generated Democratic outrage when the GOP-led Senate refused to even hold hearings on former President Barack Obama’s nomination of federal Judge Merrick Garland to fill the seat.

McConnell and his GOP colleagues have characterized Democrats’ filibuster as beyond the pale, and part of a pattern stretching back to the sinking of Robert Bork’s high court nomination in 1987. 

“We will not allow their latest unprecedented act on judicial nominations to take hold,” McConnell said Thursday morning. “This will be the first and last partisan filibuster of a Supreme Court nomination.” 

Senate Minority Leader Charles E. Schumer fired back on the floor on Thursday that Republicans had engaged in their own unprecedented level of obstruction of Obama’s judicial nominees and there was little effort to find a common ground. 

“My Republican friends feel that they have cause to change the rules because the Democrats changed the rules on the lower court nominees in 2013. We believe we had to change the rules in 2013 because the Republicans ramped up the use of the filibuster to historic proportions forcing more cloture votes under President Obama than during all other presidents combined,” the New York Democrat said. 

McConnell and his fellow Republicans will now move through a series of procedural votes over Democratic objections. The votes themselves on overturning the current precedent will largely echo what then-Majority Leader Harry Reid pushed through in 2013.

Reid and the Democratic majority eliminated the ability for a minority of senators to filibuster all other nominations, leaving out only the lifetime appointments to the Supreme Court. 

Senate Minority Whip Richard J. Durbin told CQ Roll Call that he had hoped Thursday’s proceedings were not the inevitable result of the previous use of the “nuclear option” by Democrats in 2013.

The Illinois Democrat said it became inevitable as a result of the decision by McConnell to block consideration of Garland.

“When he, for the first time in the history of the Senate, decided to deny a presidential nominee a hearing and a vote, he used the nuclear option on Merrick Garland,” Durbin said. “We’re facing the fallout now.”