Nuclear Option – Law Street

A Day After the Rule Change, Senate Confirms Neil Gorsuch to the Supreme Court

Alec Siegel — Fri, 07 Apr 2017 20:50:20 +0000

Image Courtesy of Phil Roeder; License: (CC BY 2.0)

The year-long scuffle over the Supreme Court’s ninth seat ended Friday morning, when the Senate confirmed Neil Gorsuch to fill the vacancy left by Justice Antonin Scalia, who died last February. Voting largely along party lines–save for three Democrats–the 54-45 vote capped weeks of fierce debate, culminating in a historic rule change that could further deepen the partisan rancor in the Senate.

After failing to secure the 60 votes needed to break a Democratic filibuster, Senate Republicans on Thursday triggered the so-called “nuclear option,” effectively disposing of the filibuster option for Supreme Court nominees. As a result, the 60-vote threshold dropped to a simple majority which, with 52 members in the 100-member chamber, Republicans had no trouble reaching.

“[Gorsuch] has sterling credentials, an excellent record and an ideal judicial temperament,” Sen. Mitch McConnell said after the vote. “He has the independence of mind for fairness.” Throughout 20 hours of questioning from the Senate during his confirmation hearings last month, Gorsuch was predictably elusive, neglecting to say where he would stand on specific issues.

Democrats said his strict interpretation of the Constitution put him out of the “mainstream,” and argued he too often ruled in favor of big corporations. But from the beginning, the fight was a referendum on the man who nominated Gorsuch, President Donald Trump. It was also retribution for McConnell’s refusal to give Merrick Garland–who President Barack Obama nominated to the seat–a hearing. McConnell argued a sitting-duck president should not have the authority to nominate a judge to the Supreme Court.

But despite weeks of mostly uniform Democratic resistance to Gorsuch, three Democrats, all from states that Trump captured in the election, supported him: Sens. Heidi Heitkamp (ND), Joe Manchin III (WV), and Joe Donnelly (IN). Republican Johnny Isakson of Georgia did not cast a vote.

With an immovable Democratic resistance threatening to derail the nomination of a candidate who, by many metrics, was qualified, Republicans took the extreme step of pursuing the “nuclear option.” For legislative votes, however, the filibuster will remain in place. The move was not without precedent. In 2013, then-Democratic Majority Leader Harry Reid dismantled the filibuster option for lower federal court picks and cabinet appointees.

After leading the resistance against Gorsuch, Sen. Chuck Schumer (D-NY), the minority leader, said he hopes Gorsuch will not be beholden to the man who nominated him to the court. “I hope Judge Gorsuch has listened to our debate here in the Senate, particularly about our concerns about the Supreme Court increasingly drifting towards becoming a more pro-corporate court that favors employers, corporations and special interests over working Americans,” Schumer said, imploring Gorsuch to be “the independent and fair-minded justice that America badly needs.” Gorsuch will be sworn in on Monday.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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Democrats Signal That They Will Filibuster The Gorsuch Vote

Alec Siegel — Thu, 23 Mar 2017 21:32:10 +0000

Image Courtesy of Navajo Nation Washington Office; License: (CC BY-ND 2.0)

Neil Gorsuch will likely face an uphill battle in securing the Supreme Court’s vacant ninth seat. On Thursday, the last day of Gorsuch’s Senate confirmation hearings, Democrats signaled they would filibuster President Donald Trump’s nominee to the Supreme Court. That would leave Republicans with two options: introduce a new nominee, or pursue the so-called “nuclear option,” and obliterate the filibuster possibility for Supreme Court nominees.

In a speech on the Senate floor Thursday morning, Sen. Chuck Schumer (D-NY), the Minority Leader, said Gorsuch “will have to earn 60 votes for confirmation,” adding: “My vote will be no.” As the rules stand, Gorsuch would require 60 votes–eight Democrats along with the 52 Republican Senators–to pass. If Republicans decide to scrap the filibuster option, a simple majority would be sufficient.

Voicing a common concern among Democrats and liberal groups, Schumer said he fears Gorsuch would interpret the law in an ultra-conservative manner. “His career and judicial record suggest not a neutral legal mind but someone with a deep-seated conservative ideology,” Schumer said, adding that if Gorsuch cannot clear the 60-vote mark, “the answer isn’t to change the rules,” but “to change the nominee.”

If Republicans, led by Sen. Mitch McConnell (R-KY), choose to scrap the filibuster–something Trump has expressed support for–they would not be without precedent. In 2013, Democrat Harry Reid, the Senate Majority Leader at the time, changed the rules for most presidential appointments, including federal judiciary nominees and cabinet appointees, to require simple majorities instead of the 60-vote threshold. Reid, who recently retired, kept the filibuster in place for Supreme Court nominees.

In undoing the filibuster, Reid and most Democrats (a few opposed the move) said it was a necessary response to what they saw as unprecedented Republican obstruction. Republicans saw it as a gross abuse of power that would come back to haunt Reid. McConnell called it a “power grab.” Indeed, many of Trump’s less-popular cabinet appointments narrowly passed the Senate, and likely would have been thwarted had the ability to filibuster been in place.

Gorsuch’s best chance at securing the nomination could come through the handful of Democrats who will be up for re-election next year in states that Trump won. But if Sen. Bob Casey (D-PA), who is up for re-election next year, is a harbinger of how his colleagues will vote, Gorsuch would fall short of 60 votes. “I have serious concerns about Judge Gorsuch’s rigid and restrictive judicial philosophy,” Casey, said on Thursday. Gorsuch, he said, “employs the narrowest possible reading of federal law and exercises extreme skepticism, even hostility, toward executive branch agencies.”

Alec Siegel

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The Senate Filibuster: On Its Way Out?

John Gomis — Fri, 24 Oct 2014 17:43:44 +0000

Image courtesy of [DonkeyHotey via Flickr]

The ability to filibuster has long been an important tool for the United States Senate and some state legislative bodies. But some worry that it leads to unnecessary delay and a stop to productivity. Read on to learn about the development of the filibuster, its uses, and its abuses.

What is a filibuster?

In the Senate the general rule is that a Senator may speak for literally as long as he or she is physically able to do so. When a Senator realizes that his or her position regarding a potential act of Congress is a minority one, the filibuster allows prolonging that debate indefinitely or using other dilatory tactics in order to prevent Congress from voting against that position. Any bill can be subject to two potential filibusters. A filibuster on a motion to proceed to the bill’s consideration, and a filibuster on the bill itself. The typical practical effect of this tactic is that Congress will usually move on to other business for expediency’s sake if a filibuster is threatened on a controversial bill. Filibustering is generally very difficult if the proposed action is not controversial.

However, a filibuster in the U.S. Senate can be defeated by a procedure called cloture. Cloture allows the Senate to end a debate about a proposed action if three-fifths of available Senators concur. After cloture has been initiated, debate on that bill continues for an additional thirty hours with the following restrictions:

No more than thirty hours of debate may occur.
No Senator may speak for more than one hour.
No amendments may be moved unless they were filed on the day in between the presentation of the petition and the actual cloture vote.
All amendments must be relevant to the debate.
No other matters may be considered until the question upon which cloture was invoked is disposed of.

This process prevents filibustering from being used by a minimal number of Senators to obstruct bills that the vast majority of Congress wants to pass. However, cloture has drawbacks. It is difficult to implement because it often requires bipartisan support in order to get three-fifths of Senators to vote for it. It also takes time to implement because it must be ignored for a full day after it is presented. Finally, it requires a quorum call before voting so a large enough group of Senators can further delay voting by being absent so that a quorum is no longer present.

One of the most recent filibusters in the US Senate was conducted by Senator Rand Paul (R-KY):

Paul filibustered for nearly 13 hours, which is impressive. The longest Senate filibuster ever recorded was by Strom Thurmond, who filibustered for 24 hours and eighteen minutes.

What’s the argument for getting rid of filibusters?

Proponents of eliminating the Senate’s ability to filibuster argue that filibustering is childish and prevents proper resolution of disagreements about proposed bills. Filibustering allows belligerent legislators to seek acquiescence rather than compromise. When a filibuster is threatened, proponents of a bill may accept amendments to the bill that they do not favor in order to end debate. Even worse, double filibusters can make passing some bills much more time consuming. Moreover, filibusters can create dire consequences for bills that are proposed in time-sensitive circumstances e.g. when the fiscal budget is near expiration and voting is obstructed in order to advance policy interests.

What’s the argument for keeping the ability to filibuster?

Opponents of ending filibustering argue that the maneuver is necessary to preserve the fair representation and consideration of minority views. Without it, a simple majority could pass oppressive restrictions and hardship onto the minority and there would be no recourse against a duly passed law. The filibuster has been used to protect the rights of minorities in this country for a long time. The Senate was designed to ensure that the public’s representation in the decisionmaking process is not entirely controlled by the whims of the majority so that the power dynamic between majority and minority interests did not render the minority intrinsically powerless.

Recent Developments in Filibusters

In 2013, the power of the filibuster hit a road bump. The Senate voted to eliminate the possibility of using the filibuster on federal executive and judicial nominees (excluding Supreme Court nominees). This move was called the “nuclear option,” and it meant that it would just require a simple majority of Senators in order to move forward on confirmation votes. There were many Obama administration appointees stuck in a limbo because they could not get Senate approval.

168 filibusters of nominees in our history. HALF of them have occurred during Obama years! pic.twitter.com/xbQfsftLGm

— Senator Harry Reid (@SenatorReid) November 21, 2013

While the nuclear option was an unprecedented change that will have real effect on the confirmation process for a long time to come, it only affects cloture and filibuster situations in that particular context.

Conclusion

The filibuster has, for many years, played an important role in the American legislative process. But in the United States’ current condition of hyper-partisanship, it may no longer make sense for the filibuster to hold such a strong pull. Filibustering was created to allow the minority to be able to speak on issues that they feel strongly about — but when does the minority abuse that power to take the majority hostage? The Democrats’ 2013 choice to invoke the “nuclear option” may end up being the first in many changes we see to the filibuster moving forward.