USA TODAY International Edition
Nine steps pave the ‘ nuclear’ path
Here’s how Republicans can put Gorsuch on the Supreme Court without a single Democrat
How, exactly, does the Senate go “nuclear”? If Supreme Court nominee Neil Gorsuch doesn’t get 60 votes this week — the showdown will probably be Thursday — to overcome a Democratic filibuster of his nomination, Republican leaders will likely move quickly to change Senate rules to confirm him without the need for a single Democratic vote.
The change is called the “nu- clear option” because it blows up long- standing rules and bipartisanship in a chamber that has traditionally valued both.
It also is a complicated process that only a parliamentarian could love, the subject of two detailed 2013 reports by the non- partisan Congressional Research Service, which helps members of Congress understand congressional procedures.
CRS based one of those re- ports, from Dec. 6, 2013, on action by former majority leader Harry Reid, D- Nev., who used the nuclear option that year to change Senate rules so lower- court judges and Cabinet nominees could be confirmed by a simple majority, scuttling a Republican filibuster. That move by Reid basically laid out a procedural road map Republicans could now follow to get
their way on Gorsuch.
The nuclear path appears to include nine steps senators would take before finally moving to an up- or- down vote to confirm Gorsuch as the new Supreme Court justice. Republicans could vary these steps a bit, but, based on what Reid did, here’s how the process could go:
1. RECONSIDER
Immediately after Gorsuch fails to win the 60 votes needed to overcome a filibuster, Senate Majority Leader Mitch McConnell, R- Ky., could make a motion for the Senate to reconsider that failed vote ( called a cloture vote). His motion cannot be debated and would need only a simple majority of the votes cast to pass, which is key because Republicans hold a slim majority of 52 seats. If McConnell’s motion to reconsider passes, then ...
2. POINT OF ORDER
McConnell could raise a “point of order” basically declaring that it will now take only a simple majority of senators ( rather than three- fifths of the body) to end a filibuster and advance Gorsuch’s nomination to a final upor- down vote.
3. RULING OF THE CHAIR
The Republican senator presiding over the session that day ( and sitting in the big chair at the top of the dais) would rule against McConnell’s point of order because it contradicts current Senate rules. This is all part of a carefully choreographed procedural dance, so McConnell would be expecting this.
4. APPEAL THE RULING
McConnell would then appeal that “ruling of the chair” and ask senators to vote to overrule it.
5. VOTE TO OVERRULE
The Senate would vote on whether to overrule the chair. Once again, Republicans would need only a simple majority to win this vote. If the ruling is overturned, then ...
6. DEMOCRATIC POINT OF ORDER
Senate Minority Leader Charles Schumer, D- N. Y., could raise a point of order essentially declaring that the old rules should still be followed and 60 votes should still be required to end the filibuster on Gorsuch’s nomination.
7. RULING OF THE CHAIR II
The presiding officer ( who, remember, would be a Republican) would surely rule against Schumer.
8. VOTE TO OVERRULE II
Schumer could then appeal that ruling and ask for a vote, which he would undoubtedly lose. If the ruling of the chair was upheld, it would confirm the new rule requiring just a simple majority to advance Gorsuch’s nomination.
9. RE- VOTE CLOTURE ( TO END FILIBUSTER)
Finally, the Senate would vote on the cloture motion, which Republicans would be able to pass easily, ending the Democratic filibuster. That would clear the way for an up- or- down vote on Gorsuch.
A cloture vote forces an end to the filibuster but allows for an additional 30 hours of debate before the nomination can come to a final vote. That debate could send the vote to Friday or Saturday, depending on how many hours the senators use up with all of their procedural maneuvering.
The Senate is scheduled to begin a two- week recess on April 10, so McConnell probably would schedule a weekend vote to confirm Gorsuch if necessary before the chamber adjourns.