In between cabinet confirmations, everyone’s whispering about the Senate’s nuclear option. With Senate Majority Leader Mitch McConnell hedging his bets and not saying one way or another whether he’s willing to use it, and with other Republican Senators insisting that Neil Gorsuch will be confirmed one way or another, it’s clear that it’s at least in play. President Trump encouraged Senator McConnell to use it if that’s what it took.
But what IS the nuclear option? I see a lot of disinformation out there ranging from “It makes the filibuster illegal” to “It can’t happen until the Senate changes their rules at the beginning of a session.” Neither are quite accurate.
The Senate and House are governed by huge volumes of strange, arcane, and sometimes non-sensical parliamentary rules. One of them is that the Senate requires 60 votes to move forward on confirmations. The nuclear option changes it to 51 votes, and given that Republicans control 52 seats, that might well be the only way to get ANY Supreme Court nominee confirmed.
So how does it work?
As expected, with lots of individual steps and processes that make even a parliamentarian’s head spin. If you really want to read every little bit of it, here’s a report from the Congressional Research Service. I’ll give you the gist of it without the banality.
Simply put: The nuclear option requires that 51 Senators vote to change the rules requiring 60 votes to 51 votes. It can be done while the Senate is in session, it can be limited to specific votes or to exclude votes, and yes, it’s been done before.
Democrats did it in 2013 to push a bunch of judicial nominees through, though it was explicitly limited to not include Supreme Court nominees. No one has ever tried it on a Supreme Court nominee and no one seems to really want to, though I suspect our current crop of Senators are willing to if it comes down to it.
Our legislators are so hesitant to use it because it’s one hell of a precedent to set. The Senate is the “sane” legislative body. They’re calmer, they’re not fighting for re-election every 2 years, they’re more contemplative, and they have a lot more power. They’re generally more serious. Senators know that once you open the Pandora’s Box that is the nuclear option because no one wants it to come back and bite them in the ass when their party isn’t the one in power anymore.
This is a terribly contentious nomination for myriad reasons, all of which we can discuss here in the future. For now though… that’s the nuclear option in a nutshell.