By Katie Pickle
On April 6th, Senate Republicans deployed the so-called “nuclear option” to confirm Donald Trump’s Supreme Court nominee Neil Gorsuch. The procedure, proposed by Mitch McConnell and passed by a 52-48 party-line vote, effectively bars minority resistance to Supreme Court nominees, reducing the threshold to end a filibuster from a 60-vote majority to a simple 51 vote majority. The concept is not a new one—in 2013, Senate Democrats changed the filibuster cloture requirement for all Cabinet-level and judicial nominations to a simple majority.[i] By making the nuclear option available for Supreme Court nominees, a Senate minority will no longer be able to delay nominations potentially infinitely with filibusters. The change in the process, although perhaps a simplification, also threatens the already fast-fading bipartisanship in an increasingly polarized Congress.
On one hand, the use of the nuclear option ends the futile war between the parties that occurs whenever a justice, judge, or official is nominated, regardless of the individuals’ qualifications. The filibuster could be used as a petty move by the minority party to make more difficult the process for the majority party, needlessly drawing out the debate when the party in power will end up succeeding eventually regardless. This seems to be the case with Gorsuch; he is well-qualified with 10 years of experience on the circuit court and is a rather moderate choice.[ii] It appears that the primary reason the Democrats sought to block Gorsuch was because they were resentful that the Republicans refused to consider President Obama’s nomination of Judge Merrick Garland back in March 2016.[iii] The scenario with Garland was similar to the situation with Gorsuch in terms of relative ideology—the Republicans could have been faced with a much worse choice as Garland was a rather moderate option. Filling a Supreme Court seat is an extremely important endeavor; without the possibility of a 5-4 majority pivotal precedential decisions may not be able to be made. There is certainly a case to be made for the nuclear option as a method of confirming justices quickly and easily and forgoing the frustrating partisan struggle that seems to hold Congress back in a number of areas.
On the other hand, however, the nuclear option has troubling implications for the sanctity of the American democratic system. The 60-vote majority that was required to end a filibuster was put in place to force the parties to come to an at least somewhat bipartisan decision and foster compromise. The Constitution and the history and traditions of this country are highly concerned with ensuring that the minority still has a voice in the political system—with the nuclear option, this voice is silenced. For now, the nuclear option is not available in the passing of legislation, but if a Senate majority may so easily change the rules for something as influential as a Supreme Court nomination, who is to say that they will not eventually do the same in the legislative process. It should not be so easy for one party to completely seize power in crucial decision-making. However, if both parties continue down the path of making little effort to work together then it is likely that the hallmarks of our system may end as acrimony increases. Strategically it made no sense for the democrats to force the Republicans hand and it is even more likely that Trump will see no need to consult the democrats when it comes to the next supreme court pick which could tip the balance of power
Though the confirmation of Gorsuch is no doubt a sigh of relief for the Republican party, they may end up regretting their use of the nuclear option when the time comes that the Democrats come into the majority and have the opportunity to do the same. It may seem like a passing one-time event for now, as it is not every day that the Senate nominates a Supreme Court Justice. But is important to think about how this procedural change applies not only in this specific setting, but to the party balance of Congress and what it means for the day to day workings of the legislative branch as a whole.
About the Author: Katharine Pickle is a 1L student at Emory Law School and a 2017 Summer Law Clerk for Reid Law Firm.
Edited by Chris Reid, Attorney at law.
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