Here's The 10 Step Process to Engage The Senate's 'Nuclear Option'

A lot of parliamentary shenanigans, but ultimately everything in the Senate is 'majority rules'


Glasshouse Images/Newscom

Unless something changes in the next few hours, it appears that at least 41 Democrats, according to The Washington Post and other media outlets, will attempt to block the nomination of Neil Gorsuch on the Senate floor. That could potentially cause Republicans to trigger the so-called "nuclear option" and vote to kill the filibuster for Supreme Court nominees.

That number is key in Congress' 100-member upper chamber, where 60 votes are required to do pretty much anything (except appoint federal judges to courts other than the Supreme Court, but more on that in a minute).

If Republicans can't get 60 votes to close off debate on Gorsuch's nomination, Democrats would be able to filibuster and grind the Senate to a halt until Gorsuch is withdrawn from the confirmation process. The 60-vote threshold in the Senate is a somewhat unique element in parliamentary bodies around the world and one of the things that makes the U.S. Senate "the world's most deliberative body."

It's also something of an illusion, just like all the other rules that govern how Congress operates. That's because all the rules can be rewritten with a simple majority vote—yes, even rules that say a super-majority is needed for this or that.

The filibuster has survived for so long purely because of a bipartisan, institutional belief that it matters. Any group of 51 senators (or fewer, in the days when the nation had fewer states) could have killed the filibuster at any time, but that great protection against majoritarianism carries on, counter-intuitively, because no majority has ever sought to kill it—probably because all majorities eventually become minorities, and no minority has ever made the mistake of goading the majority into killing it, as the Democrats appear willing to do this week.

Still, this isn't the first time the filibuster has been weakened substantially. Democrats struck the first blow against the filibuster in 2013 by rewriting the rules so the 60-vote threshold no longer applied to all federal court appointments except appointments to the Supreme Court.

It's widely assumed that if Republicans can't get eight Democrats to vote in favor of cloture on Gorsuch this week, Senate Majority Leader Mitch McConnell (R-Kentucky) will trigger the so-called "nuclear option" and abolish the filibuster for Supreme Court nominees.

Here's how it would go down—with Republicans following the same path as Democrats did in 2013.

Step 1: The Senate will vote to invoke "cloture," which ends debate on whatever issue is before the chamber. Under Rule XXII, the Senate requires 60 votes to approve cloture and end a debate.

Step 2: Assuming cloture fails (if it succeed, no nuclear option would be necessary), a Republican senator will move to reconsider—aka, revote—on the cloture motion. After it fails a second time, Majority Leader Mitch McConnell (R-Kentucky) will raise a point of order declaring that all Supreme Court nominees can be approved with a simple majority vote.

Step 3: The Senate President pro tempore gets to rule on whether points of order are approved (that is, in line with the Senate's rules) or overruled, based on Senate rules and precedent. In this case, Senate President Orrin Hatch (R-Utah) would presumably rule that McConnell's point of order is overruled, because Senate rules and precedent say cloture is required for Supreme Court nominees.

Step 4: Here's where the change really happens. McConnell gets overruled, but he's allowed under Senate rules to appeal the ruling of the Senate president. If he wants to invoke the "nuclear option," he will appeal Hatch's decision, which triggers an immediate vote (meaning there can be no debate before the vote) on Hatch's ruling.

Step 5: The vote on the Senate president's ruling is a simple majority vote. If a majority of the Senate votes "nay" on Hatch's interpretation of the Senate rules, a new precedent is set to guide future votes on U.S. Supreme Court nominees—namely, a precedent saying cloture is not required.

Step 6: Democrats will likely appeal that vote, with Senate Minority Leader Chuck Schumer (D-New York) raising a point of order and asking the President pro tempore if cloture is required for U.S. Supreme Court nominees.

Step 7: Hatch will cite the just-taken vote as a new Senate precedent that the threshold for approving Supreme Court nominees is a simple majority. He will overrule Schumer's point of order.

Step 8: Schumer can appeal this ruling and call for a vote on the Senate President's ruling. Just like what happened in Step 4, this triggers an immediate vote.

Step 9: The Republican majority will defeat Schumer's appeal, and Hatch's interpretation of the rules (the new interpretation, which says only a simple majority is needed) will be confirmed.

Step 10: Finally, after all the parliamentary shenanigans, the Senate will return to the question of Gorsuch's nomination. With the new precedent in place, a simple majority vote will approve Gorsuch's nominee and make him the 113th member of the U.S. Supreme Court.

As Peter Suderman wrote in 2013 when then-Senate Majority Leader Harry Reid (D-Nevada) did this, the Senate is basically a very elaborate, expensive version of Calvinball. That's the fictional sport from the comic strip Calvin and Hobbes played and invented by the two title characters. There are a slew of complicated rules associated with the game, most of which are arbitrary and some of which are utterly nutty, but the most important thing to know about the game is that any of the rules can be changed at any time, usually by any player, except perhaps when there are rules prohibiting some players from making those changes.

"It's a game, in other words, with an awful lot of complex and arcane rules that tend to evolve over time and are generally determined by the players themselves—rules that usually have to be obeyed, except when they don't," Suderman wrote. "This is not an exact description of how the Senate works, but it's close enough. And it's a reasonably useful context in which to understand the most recent squabble over the filibuster."

That's still just as true today.

One final note: it's possible that eight Democrats could decide against filibustering Gorsuch's nomination, even if they intend to vote against him. That would give Republican the margin they need to enact cloture and proceed to the final vote, even if the margin in support of Gorsuch falls below the 60-vote threshold. That's what happened in 1991 when Justice Clarence Thomas was confirmed by the Senate with a 52-48 vote, after Democrats withdrew their petition to force a cloture vote.

A similar move with Gorsuch's nomination would preserve the filibuster for Supreme Court nominees, a tool both parties might someday wish they still had at their disposal.

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  1. September 17, 1986: Antonin Scalia is approved by the senate 98-0 (hard to believe, but absolutely true).

    July 1, 1987: Despicable, loathsome senator Ted Kennedy invents “Borking”, unfairly smearing a decent and highly qualified man, and in a matter of days pretty much single-handedly throwing out the window decades of relative comity in the Senate when it came to Supreme Court nominations.

    To all the democrats pissed about the nuclear option, go take a good long look in the mirror, because you guys did this. You’re the reason why it has come to this now.

    1. No shitty nickname for Ted Kennedy? You’re slipping, Mikey.

      1. There’s something shittier than ‘Kennedy’?

        1. There is no Peak Shitty when it comes to the products of Mikey’s imagination.

          1. I was known as Peak Shitty in college.

        2. “Warren”

    2. Two wrongs make a right–the fallacy justifying Republican horseshit since 1987.

      1. This is as close to an admission that the Democrats are wrong as you’ll ever get from Tony, but that’s mostly just because he’s a brilliant libertarian who likes to troll us with fake ‘liberal democrat’ views.

        Keep up the good fight, sir.

    3. Borking. Where a conservative judge is opposed by a Democrat, given a hearing, and loses 9-5.
      Borked judge then demands a full Senate vote, gets it, and loses it, with bipartisan support. 42-58. Two liberals vote for him, six conservatives against.
      In place of the Borked judge, another conservative judge gets in 96-0

      Garlanding. Not even heard or met with because black guys are 7/8ths a president.

      1. So, Garland got Borked, except without the personal acrimony?

      2. When you decide that you can’t wait your turn for the brass ring and you murder a sitting justice in cold blood and leave a pillow lying on top of his head to rub it for good measure, you don’t get to pick his replacement.

        It’s kind of one of those unwritten rules. Think of it as an emanation or a penumbra if it makes you feel better.

      3. No mention of Kagan or Sotomayor who went to the bench under the “7/8 ths” president. I know know the demkiddies want it all.

        Honestly, the Republications played a dangerous game. If Hillary would have won, they could confirm Garland or see what her nominee would be.

        I guess the Republications were the first to ever drag their feet and not vote on someone…oooo wait…

  2. The Democrats are for big government, so getting rid of the filibuster is in their best interest to expand government- in theory.

    The problem for Democrats is that they will not have 3 branches kind of power for aaaaaaa loooooonnnnggg time.

    1. I don’t know, two to four years really isn’t that long. Either Democrats will retake everything at or before the end of Trump’s term, or we might see a meaningful splinter in the Republican party, but Republicans as-is are doing their best to make sure their stay at the Capitol is short lived.

    2. Republicans are big corporation. Drumpf just appointed his son in law to run the country like a business.

      A big business

  3. My local paper is phrasing the opposition to Gorsuch as a coalition of “Democrats and independents,” as if there’s a whole bloc of independent senators who also hate the dude instead of just Bernie Sanders.

    1. Yes but describing it as “A coalition of fascists and a crazy old man screaming at his lawn gnome to work harder for the good of the proletariat” doesn’t have the same rhetorical zing.

      1. “A coalition of fascists and a crazy old man screaming at his lawn gnome to work harder for the good of the proletariat”

        That may be the best description of the Dems and Berntard I’ve ever seen. Nicely done.

  4. The general direction this is going suggests the filibuster will be gone for all matters in relatively short order. I think that winds up leading to some significant volatility in policy as the first order of business after a change in power will be to get rid of everything the other side did. I’m not sure how I feel about that. My hope would be that people see that, conclude the government is dysfunctional and decide we don’t need a federal babysitter for every tiny life decision.

    Complete fantasy I’m sure. There is probably a better chance we go full Chavez to “fix” the volatility.

  5. If Republicans can’t get 60 votes to close off debate on Gorsuch’s nomination, Democrats would be able to filibuster and grind the Senate to a halt…

    Let’s do that.

  6. Meanwhile, CNN reports that the filibuster is a way for the “minority party to stonewall”.

    Duh. Yes. That’s exactly what it is. But not a minority party of 5% or even 1/3, but 41%.

    If 41% of the senate is not on board, something is wrong. It may be good judgement, it may be policy, or it may be (as in this case) pure politics, but something is very wrong.

    1. Something is very wrong all right. Democrats are far left and try and push the USA toward socialism. Republicans are big spenders and fixated on combining government and religion. Both groups cannot stand Libertarians.

      I say lets get Congress back to being part-time politicians. They would have less time at the office to do so much damage.

      1. Both groups cannot stand Libertarians.

        When the revolution comes, regardless which side starts it, we’ll probably be some of the first people put up against a wall and shot. They won’t even bother with re-education first because we’re hopeless.

        1. So be ready to take a few with you.

          “The size of your honor guard determines your status in Hell” [Heinlein]

          1. But beware of strong drink. It can make you shoot at tax collectors … and miss.

        2. As long as Tony gets it first, I won’t complain.

        3. Probably not. We fight back.
          First to go will be the unarmed, regardless of past party affiliation.

    2. That 41% does not want Gorsuch out of some sacred principle, or any ideology. It’s because he doesn’t have a D after his name. It’s 99.97% Ivory Pure Partisan Politics. Trump could nominate Jesus Christ (or the Sainted Barack Hisself) and the Democrats would still feel obligated to bitch about it.

      We have perhaps the best nominee in the past twenty years, and they want to shit on him because there is a (T) in the White House.

      p.s. Not a perfect nominee, not by a long shot, but the best of those that could possibly be included in a realistic short list of potential nominees.

      1. Jesus was against abortion so we would hear how he would over turn Roe vs Wade.

      2. Jesus was against abortion so he would be a non starter from the Democrat side…

  7. This procedure is really gross. It could be used by every little local charity organization whenever they want to break their own rules, but they have too much decency for that.

  8. And Democrats will have only themselves to blame, but they can throw it all back on the excessively corrupt Reid if they really want to…

    1. Go back to the Drudge Report you inbred cow.

      1. Translation of Tony’s reply “it’s only ok if my team does it”

  9. Before the filibuster can be restored, the GOP needs to thump the Dems once in a “tit for tat” for what the Dems did in 2013 – and the Dems need to stand there and take it. If the GOP doesn’t do this, any restored filibuster will be unstable, with a permanently lowered downside to rejecting it on future occasions.

  10. Personally I think the only kind of filibuster that should be allowed is a speaking filibuster; let the senator stand there and talk for days on end to block things. The modern method of just voting on a filibuster and moving on is giving an incredible amount of power to the minority party with virtually no effort on their part. Maybe they would use it less, for less partisan reasons, if they actually needed to constantly do something in order to make it happen.

    That being said, I think it’s pretty obvious that partisan politics has infected everything at the National level. Everything. This whole FISA court wiretapping of a potential incoming U.S. President shows how nasty things have really become.

    Welcome to the USSA, Comrade!

    1. A speaking filibuster requires too much effort

      Do you really think many of them have the fortitude to stand on their own feet for more than a couple hours?
      The speaking for hours though that is certainly well within their capability.

      From the point of view of the minority voice, a speaking filibuster doesn’t ultimately block anything so why do it.

  11. I can understand a filibuster on a final vote. But a filibuster to prevent a vote from even taking place has always confused me. But that’s what a filibuster is. And people call this a sane system. Go figure.

  12. About time.
    Get rid of this stupid rule, and vote

  13. In this case, Senate President Orrin Hatch (R-Utah) would presumably rule…

    One quibble the Senate President is NOT Orrin Hatch. It’s a guy by the name of Mike Pence.

    Orrin Hatch is the President pro tempore. There’s a difference..

    1. You can tell the difference because the President Pro Tempore is allowed to dine alone with a page.

      1. Not if the page is also a college student! Title IX and all that jazz. The invitation alone would be sexual assault.

  14. A similar move with Gorsuch’s nomination would preserve the filibuster for Supreme Court nominees, a tool both parties might someday wish they still had at their disposal.

    Like now, for instance?

  15. This begs the question. What’s the point of cloture if supreme court nominees are almost never filibustered? And when they are, it seems not to be a question of qualifications.

    Nominees fail when they lack the support of the majority party.

  16. It is not the nuclear option, it is the Reid rule.
    Another option is to invoke the rule that a Senator can only speak twice on a bill in a “legislative day”. A legislative day ends when the Senate president sat it does. Just fill up CSPAN with the Democrats babbling for 82 speeches, then have the vote.
    Or just vote to change the rules for everything, not just court nominations. That would really put the place into panic mode. Then as soon as the democrats get back in power, we can just surrender to Cuba and be done with it. At least we get access to an awesome classic car market.

  17. Term limits. Nuke em all.

  18. So they don’t actually vote to change the rules to say explicitly that 60 votes are not required to stop debate on a Supreme Court Justice? They vote to reinterpret them, or rather to support the President Pro Tem’s reinterpretation? Why? And how does anyone know exactly what the new rules are (such as the current “rules” that bar filibusters when confirming Federal judges other than Supreme Court Justices) if they aren’t committed to paper as actual rules?

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