Whether the easy way or the hard way, GOP will confirm Gorsuch
In truth, almost nobody has real interest in the Senate’s rules. They’re about as dry as cardboard in the Sahara. Even so, they’re critically relevant to Judge Gorsuch’s confirmation.
For the uninitiated, a filibuster is a tactic—usually a prolonged speech—that delays consideration of a measure before a legislative body. There is no “right” to filibuster in the Senate. It’s a creation of Senate rules and precedent rather than any statutory or constitutional requirement. That’s important, because any legal challenge to the Senate’s determination of its own rules will likely run into the political question doctrine. Basically, courts are reluctant to adjudicate rule disputes within legislative bodies.
Over time, the Senate has amended its rules to require “three-fifths of the senators duly chosen and sworn” to end debate on a pending matter and two-thirds of the body to change the rules.
However, former Senate Majority Leader Harry Reid, D-Nev., flatly ignored the Senate’s standing rules in November 2013. Rather than actually changing them with 67 votes, Reid engaged a procedural move that effectively set a new precedent by a vote of 52-48. The change permitted a simple majority of the Senate to end debate on presidential nominations to positions other than the Supreme Court.
McConnell now has three options to confirm Gorsuch. He has the votes, he just needs to deal with the filibuster.
Republicans might successfully peel away eight Democrats and independents to break the filibuster. There’s a simple reason to believe this might actually happen: In 2018, 10 Senate Democrats are up for election in states that Trump won. Politics might not be a persuasive consideration for all of them, but it’s certainly possible to find enough.
Another option is to enforce Senate Rule XIX, which limits senators to two speaking opportunities per legislative day. Senate Republicans could refuse to adjourn the legislative day so that it extends well beyond a calendar day. Democrats could filibuster, but they’d eventually wear out. Republicans would use procedures to keep them talking on the Senate floor. The move is more consistent with the Senate’s rules than the so-called “nuclear option,” but it would be absolutely brutal to watch and likely consume a considerable amount of legislative time.
Reid’s “nuclear option” is McConnell’s ace in the hole. He’d rather not do it, but failing to confirm Gorsuch isn’t an option. McConnell could pull the same move as Reid and extend it to cover Supreme Court nominees. Senate institutionalists might not like it, but Republican senators will like losing in their primaries even less.
Replacing Justice Antonin Scalia with a like-minded jurist was a persuasive consideration for many of Trump’s voters. They’re not going to take kindly to Republican senators explaining why a majority of Republicans can’t confirm Trump’s nominee. That’s the long and short of it.
Democrats have a fair gripe that the Senate should have held hearings for President Barack Obama’s nominee Merrick Garland, but the Republican majority would have almost certainly rejected his nomination. That’s an important distinction between consideration of Garland and Gorsuch.
Ultimately Democrats get to decide whether the Senate does this the easy way or the hard way, but—absent some stunning revelation—Neil Gorsuch will be the next associate justice of the United States Supreme Court.
Image by Official White House photographer