 |
| Sen. Mitch McConnell details efforts to replace ObamaCare |
“There were too many shaky hands holding the lighters near too many fuses.” – Stephen King, The Drawing of the Three
It’s always a numbers game on Capitol Hill. Which side possesses the most votes. After all, that’s the essence of democracy.
The Founders feared direct democracy -- and various
other forms of republican democracy. So they tempered the power of the
majority.
Unlike the House, the Senate was the deliberative
body. There, the minority could often prevail -- entailing a
supermajority to shut down filibusters.
Neutralizing a Senate filibuster used to take 67
votes (two-thirds). The Senate dropped that to a three-fifths
requirement in 1975. However, a two-thirds vote is still necessary to
alter the Senate’s rules.
This is why the numbers game is so important. It’s
clear that a majority of senators want to confirm Supreme Court nominee
Neil Gorsuch. But it’s doubtful that a supermajority of 60 senators are
willing to shut off debate on President Trump’s nomination.
This brings us to the so-called “nuclear option,” a
fundamental obliteration of the Senate’s structure requiring a
supermajority to overcome a threatened Democratic filibuster of Gorsuch.
It’s unprecedented for the Senate to successfully
filibuster a Supreme Court pick. Defeat a nominee on the floor? Yes.
Look at what happened to President Reagan’s nomination of Robert Bork
for the high court in 1987. Bork scored a scant 42 yeas when 51 ayes
were necessary for confirmation. Require a Supreme Court nominee to
secure 60 votes to shut off the filibuster before confirmation? Well,
that’s a mixed bag.
Neither of President Obama’s selections for the court
-- Justices Sonia Sotomayor nor Elena Kagan -- faced a “cloture” vote
to end a filibuster. But the Senate confirmed both picks with
supermajorities. Sotomayor secured 68 yeas. Kagan marshaled 63 yeas.
However, when President George W. Bush tapped Justice
Samuel Alito for the Supreme Court in 2006, Senate Democrats (then in
the minority) demanded a cloture vote to end a filibuster. Alito scored
72 yeas on the procedural vote. The Senate then confirmed Alito, 58-42.
This is what riles Senate Republicans. The GOP sports
only 52 members right now. Two Democrats have announced their support
for Gorsuch: Sens. Joe Manchin, West Virginia, and Heidi Heitkamp (North
Dakota.
Both are moderate Democrats in red states who face
potentially brutal re-election campaigns next year. Senate Majority
Leader Chuck Schumer, D-N.Y., insists that if someone is going to sit on
the High Court for life, they should command 60 votes on the Senate
floor.
“It’s going to be a real, uphill climb to 60,” Schumer predicted for Gorsuch.
“It’s the most powerful court in the world,” said
Sen. Bob Casey, D-Pa. “If you’re seeking to be an associate justice on
the Supreme Court, you ought to be able to rack up 60 votes. I don’t
think that’s unreasonable.”
Republicans know they face a deficit to defy the
Democrats’ filibuster of Gorsuch. But Senate Majority Leader Mitch
McConnell, R-Ky., is unwavering.
“We are going to get Judge Gorsuch confirmed,” he
said. “It will really be up to (Democrats) how the process to confirm
goes moving forward.”
Embedded in McConnell’s remark is a gambit to deploy
the “nuclear option” to confirm Gorsuch. After all, it’s about the
numbers. So if McConnell doesn’t have the numbers, he’s willing to do
something drastic to promote Gorsuch.
“If the nominee cannot get 60 votes, you don’t change the rules,” Schumer argued. “You change the nominee.”
The 60-vote threshold is dubious for Supreme Court
justices. All recent justices proved they could command 60 votes at some
point in the process. But the ceiling for Gorsuch so far is at 54
votes.
So what exactly is the nuclear option?
Schumer is wrong about one thing. The nuclear option
is not a rules change. It’s a change in Senate precedent. The chamber
currently has 44 rules. But as mentioned before, altering those rules
requires 67 votes, seven more votes than necessary to invoke cloture and
stop debate on Gorsuch’s nomination.
So with only 52 Republican senators, McConnell can’t switch Senate rules. But he could set a new precedent.
See, the Senate also operates on precedent -- a set
of parliamentary criterion based on things that happened before. So, if
you can’t change the rules, perhaps establish a new precedent.
Democrats opened Pandora’s Box on the nuclear option
in November 2013 when they held the majority in the Senate. Senate
Democrats didn’t have 67 votes to change the chamber rules. But
then-Senate Majority Leader Harry Reid, D-Nevada, enacted a new
precedent of how many votes are necessary to extinguish filibusters on
executive branch nominees except Supreme Court picks.
As we say, it is a numbers game. Reid had the numbers
-- a simple majority -- to form a new precedent for those types of
nominees.
It’s a numbers game today, too. McConnell has 52
Republicans on his side. He could conceivably launch the nuclear option
to constitute a new precedent to require but a simple majority to end
filibusters of Supreme Court nominees -- rather than the old bar of 60
votes. All McConnell needs are 51 Republicans to go along to with his
gambit.
McConnell must be sure he has at least 51 of his 52
members willing to do the deed. Fifty yeas would suffice if Vice
President Pence comes round to break the tie. It’s unclear whether
McConnell has those votes. Some Republican senators are leery of
re-opening Pandora’s Box to authorize a new precedent. Senators are
generally reluctant to change the chamber’s long-standing traditions for
a quick-fix today.
One school of thought is that McConnell could let the
issue percolate over the upcoming, two-week Easter and Passover recess.
This could gin up support among Republicans or even let the Democrats
marinate for a while about the consequences.
But Fox is told by multiple, senior Republican
sources that should the Democrats not help Republicans count to 60 on
Gorsuch, McConnell has the votes on his side to deploy the nuclear
option. It’s likely this will all go down on Thursday with a prospective
confirmation vote on Friday.
It likely looks like this:
The Senate Judiciary Committee meets Monday to vote
the Gorsuch nomination out of committee and dispatch it to the floor.
Actual debate on Gorsuch begins in the Senate on Tuesday. Also on
Tuesday, McConnell files a “cloture petition” to end debate on Gorsuch.
By rule, cloture petitions require an intervening day
before they’re “ripe” for a vote. So a vote to end debate on Gorsuch
likely comes Thursday.
Let’s say Gorsuch fails to get 60 votes to end the
filibuster Thursday. That’s where McConnell trips the nuclear wire. From
a procedural standpoint, the Senate must be in what’s called a
“non-debatable” posture.
In other words, a failed cloture vote is just that.
There’s no more debate. This parliamentary cul-de-sac is important
because it’s practically the only procedural locus in which McConnell
could initiate the nuclear option. Any other parliamentary disposition
prevents McConnell from going nuclear. But this unique place --
following a failed cloture vote -- is practically throbbing with
political isotopes.
McConnell could switch his vote to halt debate so he
winds up on the “prevailing side” of the cloture vote. In other words,
the Democrats won. The “nay” side prevailed. By briefly siding with the
Democrats since they won that round, grants McConnell the right to
demand a revote on that same issue.
This is where McConnell lights the fuse.
All McConnell must do is make a point of order that
the Senate needs only a simple majority (51 votes) to end debate on a
Supreme Court nominee. Naturally, whichever GOP senator is presiding
over the chamber would rule against McConnell. After all, that’s not the
precedent.
But McConnell would then appeal that ruling, forcing
another vote. At that stage, the Senate is voting to sustain the ruling
of the presiding officer. But if 51 senators vote no (remember,
McConnell wants to establish a new precedent), the Senate has rebuked
the chairman’s ruling and set a new precedent. Only 51 yeas are then
necessary to break a filibuster on a Supreme Court nominee.
That is the nuclear option.
McConnell could summon Pence to preside over the
Senate should he have two defectors on his side. Bizarrely, it’s
possible Pence could rule against McConnell’s point of order -- adhering
to Senate precedent. But Pence could then vote to break a 50-50 tie to
establish a new precedent should it come to that.
The Senate would then re-take the failed cloture vote
on Gorsuch. Presumably Gorsuch secures 51 yeas to end debate. And then
Democrats, fuming at the GOP’s political artifice, would require the
Senate to burn off 30 hours before a final vote to confirm Gorsuch on
Friday night.
The Senate usually grants opponents of an issue 30 hours of debate once the chamber votes to end debate.
Prepare for nuclear fallout.
Republicans will claim that Democrats opened
Pandora’s Box with their version of the nuclear option in 2013.
Democrats will counter they had to because of Republican filibusters
back then. Republicans will declare they had no other choice but the
nuclear option because Democrats filibustered Gorsuch.
Democrats will contend it never should have come to
this. The GOP should have granted President Obama’s Supreme Court
nominee Merrick Garland a hearing.
Regardless, 51 votes will be the new precedent to
break filibusters on Supreme Court picks. This is the nuclear option. It
may be inevitable. As Stephen King wrote, “there were too many shaky
hands holding the lighters near too many fuses.”
