iStock/Thinkstock(WASHINGTON) — With Sen. Chris Coons’ announcement that he would be the 41st Democrat to vote against a procedural vote meant to advance the nomination of Judge Neil Gorsuch, Republicans officially lost the ability to approve Gorsuch under existing rules.
That means they have no choice other than to, as has become the popular phrase, “go nuclear” and reduce the needed threshold for that procedural vote — known as cloture — from 60 votes to a simple majority of 51.
President Trump encouraged Senate Majority Leader Mitch McConnell to use the option the day after he announced the 51-year-old Colorado federal appeals court judge to be his first Supreme Court pick.
“If we end up with that gridlock, I would say if you can, Mitch, go nuclear,” Trump said. “Because that would be an absolute shame if a man of this quality was caught in the web.”
Here is how the maneuver would work:
What is the nuclear option?
Going “nuclear” is a colloquial term that has emerged in recent years to describe changing the longstanding precedent for confirmation of presidential nominees. It reduces the required number of votes from 60 to a simple majority of 51.
Under Senate rules, three-fifths of senators are required to vote in favor of ending debate, or, for cloture. But in 2013, Senate Democrats employed a series of procedural maneuvers to change that requirement to a simple majority, or 51 votes, for all Cabinet-level and judicial nominations —- except for those to the Supreme Court.
The elimination of the three-fifths threshold became known as the nuclear option.
While senators have been talking about it for weeks, it only became a real option on Monday, when 41 of the 48 Senate Democrats and Independents caucusing with Democrats announced they would vote against cloture on Gorsuch.
With Senate Republicans holding only 52 seats, they needed eight Democrats in order to clear the cloture motion. As of Monday afternoon, only four Democrats have said they would vote for cloture and three are undecided. But that still wouldn’t be enough.
While McConnell has not yet indicated explicitly that he will change Senate precedent on Supreme Court nominees, he expressed certainty that Gorsuch would be confirmed by the end of this week –- meaning he only has one option left.
“Judge Gorsuch is going to be confirmed. The way in which that occurs is in the hands of the Democratic minority,” McConnell said on Fox News Sunday.
The concern for Republicans, however, is that the next time they are in the minority, Democrats could also use the nuclear option and pass their own nominees, whom Republicans may not want to confirm.
That’s exactly what happened after Democrats changed Senate precedent on other nominations to a simple majority in 2013. This year, under those changes, Trump cabinet nominees largely sailed through on mostly party-line votes.
The move has been traced back to 1957, when then–Vice President Richard Nixon stated the Constitution granted the president of the Senate the authority to override Senate rules by instating new rules upheld by majority vote.
A 2013 paper by Valerie Heitshusen, a legislative branch process expert and an educator in the Congressional Research Service, describes the nuclear option as a “novel” political move that “could undermine the prerogatives exercised heretofore by the Senate minorities or individual senators.”
What would the nuclear option do?
The nuclear option would effectively lower the threshold for approving a Supreme Court justice to 51 votes, from the 60 required to break a Senate filibuster, which is another term of art used when there’s a delay on a piece of legislation or other Senate floor process.
Right now, the Senate needs 60 votes in order to invoke cloture, the act of ending debate on a piece of legislation or nomination. Using the nuclear option would allow the Senate majority to invoke cloture, with 51 votes for the Supreme Court nominee, and move on to confirmation.
The move was most recently used by Democrats in 2013. Citing an expansion of filibustering by Republicans to block President Barack Obama’s nominees for the U.S. Court of Appeals seats, then–Senate Majority Leader Harry Reid, D-Nev., used the nuclear option to create more relaxed Senate procedures for those confirmations. The 60-vote threshold then applied only to confirmation of Supreme Court justices.
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