President Donald Trump nominated Judge Neil Gorsuch Monday for the vacant position on the U.S. Supreme Court.
Gorsuch, a judge on the 10th Circuit Court of Appeals, will now begin the process of hearings and votes in the Senate on his way to possibly being confirmed as the next U.S. Supreme Court justice.
However, the road to the seat on the country’s highest court is not likely to be a smooth one for Gorsuch. Democrats in the Senate, even before Gorsuch was named as the nominee, vowed to do whatever it takes to block the confirmation.
While it is unlikely that Democrats could block the nomination, they can use some legislative maneuvering to slow it down. Democratic leaders have said they will likely try to filibuster Gorsuch’s confirmation hearings. Some Republicans have issued a threat of their own if Democrats try to filibuster; they have threatened to invoke the “nuclear option.”
What is the nuclear option and how does it work? Here’s a quick look at the process.
What is the nuclear option?
First, a little background. It takes a simple majority of senators – 51 out of the 100 – to confirm a Supreme Court nominee. What works in favor of the Republicans is that they hold 52 Senate seats. So, if every Republican voted for Gorsuch, he would be confirmed as the next Supreme Court justice.
However, Democrats in the Senate, 46 of them (plus the two Independent Senators who caucus with the Democrats), could try to filibuster (delay) the confirmation. They could do this because as it stands now, it takes a three-fifths vote – 60 of the 100 Senators – to override a filibuster. If the filibuster is halted, the confirmation can be moved along to a vote in the Judiciary Committee and then on the Senate floor that Republicans can win if they all vote for confirmation.
If Democrats do filibuster, and Republicans want to end the delaying tactic, they would have to convince eight Democrats/Independents to join them in voting to end the filibuster so the nomination could move forward.
If they cannot get them to join in, that’s where the “nuclear option” could come into play.
If the Republicans decide they want to, a simple majority vote (51 of 100) can change the rules in the Senate. That rule change could eliminate the need for a super majority (60 votes) to stop a filibuster.
What’s nuclear about it?
It’s called a nuclear option because opting to use nuclear weapons is considered the most extreme act in war. In other words, it’s a big deal to change the rules of the Senate.
Is this the first time the nuclear option has been used?
No. The nuclear option was invoked other times, the latest in 2013 when Democrats, behind majority leader Sen. Harry Reid, (D-Nev.), voted to eliminate the rule that required filibusters on executive and federal judicial nominees be ended only by a super majority (three-fifths of the Senate, or 60 votes) vote. The can now be ended by a simple majority vote.
That rule did not include ending filibusters on Supreme Court nominees.
Sen. Mitch McConnell, (R-Kty.), who was the minority leader of Senate at the time, warned Democrats, “I say to my friends on the other side of the aisle, you’ll regret this. And you may regret it a lot sooner than you think.”
Reid said the vote for the change in rules came because “there has been unbelievable, unprecedented obstruction.”
Will the Republicans do it this time?
It’s yet to be seen. There has been talk by some Republican senators that the nuclear option is on the table. However, Sen. McConnell has not yet said specifically that the option will be used. He is thought to not be in favor of changing the rules in the Senate.
Some Democrats, such as Oregon Sen. Jeff Merkley, say they will try to use a filibuster to knock the confirmation off track.
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