With Democrats planning to filibuster Supreme Court nominee Neil Gorsuch, Republicans have said that could force their hand to try one avenue to get around a block: the nuclear option.
It’s a change in Senate rules that would lower the threshold to end a filibuster to 51 from 60. Republicans, who number 52 in the Senate, could then easily end the filibuster.
The final confirmation vote only requires a majority, so Republicans could confirm Gorsuch on their own; they just need to get past the filibuster first.
But the nuclear option is a controversial move that even some Republicans are squeamish about using.
“I don’t think we have a choice,” Sen. Mike Rounds of South Dakota said. “It’s very unfortunate. I think it turns our stomach.”
If Republicans lower the filibuster threshold for Supreme Court nominees, it could come back to haunt them if they become the minority again down the road.
Democrats are experiencing such a consequence now. In 2013, then-Senate Majority Leader Harry Reid used the nuclear option to lower the filibuster threshold for lower court judges. Now Republicans are citing that decision as the precedent for their potential use of it next week.
Members on both sides of the aisle are worried that it’s all a slippery slope that leads to lowering the threshold for legislation, which would make it smooth sailing for whatever party is in power to pass bills.
Senate Majority Leader Mitch McConnell needs a majority of the Senate to approve the nuclear option, meaning he can only afford to lose two Republicans, and so far it’s unclear just how many Republicans might be willing to vote against it.
Here’s what some Republicans have said about the nuclear option:
Sen. Susan Collins (Maine) — “I don’t want to change the rules of the Senate, and I hope we’re not confronted with that choice,” she said in an interview with CNN on 3/29/2017, stopping short of saying whether she would vote for the rule change.
Sen. John Cornyn (Texas) — “I hope it doesn’t come to that but if the Democrats force our hand, then we’ll be prepared to do what we need to do to confirm the judge,” Cornyn said on 3/29/2017.
Sen. Mike Rounds (South Dakota) — “We’re hoping we don’t have to but one way or another, he will become the next member of the United States Supreme Court. … I don’t think we have a choice. It’s very unfortunate. I think it turns our stomach. But it’s nonetheless, that’s the precedent that’s now been set by the Democrats when Harry Reid did it. And once you’ve taken that genie out of the — you know, once you’ve let it go once, how do you decide never to use it again? Once it’s been used, it’s available and it now becomes a precedent within the Senate. Otherwise, we’d still be back at 60 votes, It hadn’t been used and people weren’t using it for personnel. And now it’s being used, so you know, when Harry did the deal and pulled the nuclear option out, once it’s been used once, it’s going to be used time and time again.” — To reporters on 3/28/2017
Sen. Ted Cruz (Texas) — “I believe Judge Gorsuch will be confirmed and if the Democrats attempt to filibuster his nomination, they will not be successful.” — Comments made to CNN on 3/27/2017
Sen. Jeff Flake (Arizona) — “I accept that, prepared to do that. That will simply return us to Senate precedent, to do what was de facto prior to 2003, which nobody ever did.” — To reporters on 3/28/2017
Sen. Pat Toomey (Pennsylvania) — Gorsuch is an “outstanding choice” and Republicans are “going to confirm him … one way or another.” — To reporters on 3/29/2017
Sen. Tim Scott, (South Carolina), told reporters on 3/28/2017 he was playing it “straight and narrow right now” on whether he was leaning in favor of the nuclear option or against it. But he added: “I think his confirmation is an absolutely necessity.”
Sen. Pat Roberts (Kansas) — When asked whether he’d support the nuclear option, he told reporters on 3/28/2017 that’s “to be determined (on) whether or not that’s a) necessary and I hope it isn’t, and b) whether long term it makes any sense at all.”
“If we keep doing that, you eventually end up being very much like the House and historically that’s not a good thing for the Senate, according to what the founding fathers wanted,” he added.
Sen. Lindsey Graham (South Carolina) — Graham, who has negotiated resolutions during past Senate eruptions over judicial nominations, told reporters on 3/28/2017 he is prepared to vote for the nuclear option even though he would prefer not to. “I think it would be bad for the Senate,” he acknowledged. But asked if he would try to head off the crisis as he has done before, Graham said: “I don’t think so.”
Sen. Richard Shelby (Alabama) — He defended the use of the nuclear option to reporters on 3/28/2017. “We have an outstanding nominee,” Shelby said. “If the Democrats want to filibuster I think we ought to make sure that he’s confirmed. Period.” Asked if he was worried the changes to the filibuster rules would alter the Senate’s DNA, Shelby said no and blamed Democrats for using the nuclear option first. “If you asked me that 10 years ago, I might have had a different opinion. But majorities rule. Majorities traditionally always rule. And remember the filibuster is not in the Constitution. It’s not in any statute. It’s not the law. It’s a rule,” he said. “Democrats have already broken the rule.”
Sen. James Lankford (Oklahoma) — He told CNN on 3/29/2017 that he will vote for the nuclear option if necessary.
Sen. Mike Lee (Utah) — “This is the step they took in 2013,” he Lee told CNN on 3/28/2017. “We are going to get Judge Gorsuch confirmed — this is a good judge — this is a judge who interprets the law based on what it says rather than what he might wish it might say, and we intend to get him confirmed.”
Sen. John Barrasso (Wyoming) — “I will do whatever it takes to confirm him. He is the right person.” — On CNN on 3/29/2017
Sen. Bob Corker (Tennessee) — “It’s both sides. It’s both sides that are taking us to this place. We will end up with Reid breaking the rules and changing the rules, McConnell breaking the rules and changing the rules, it’ll just take one tough legislative issue coming up and somebody else will do it. I think we all know that’s where we’re headed.” — To reporters on 3/30/2017