Today the Senate announced a controversial rule change allowing Republicans to break the Democratic filibuster of Supreme Court nominee Neil Gorsuch.
Under the new rules, Supreme Court nominees can be confirmed with a simple majority (51) of votes, instead of the previous 60 vote requirement. Known as the “nuclear option,” this move will have major repercussions for the Supreme Court’s future and the type of nominees selected.
How Did We Get Here?
Today’s move is the culmination of over a year of hostile debate between Democrats and Republicans.
When Supreme Court Justice Antonin Scalia passed away in February of 2016, then-President Barack Obama nominated Merrick Garland, Chief Judge of the US Court of Appeals for the D.C. Circuit, to fill the empty seat. Garland was seen as a middle-of-the-road nominee that could appease both Democrats and moderate Republicans. Senate Republicans, however, refused to hold a single hearing on Garland’s nomination, bucking a long standing tradition.
Senate majority leader, Mitch McConnell (R-KY), believed that since it was an election year, choosing a nominee should be left up to the next president. Despite no historical precedence, and the election still months away, Republicans fell in line and the seat was left vacant for over a year. The Republicans gamble paid off when Donald Trump was elected President of the United States.
When Trump took office, he nominated Neil Gorsuch, a federal appellate judge with a conservative track record and a belief in constitutional originalism, to fill the Supreme Court vacancy. Democrats, angry over the Republicans’ treatment of Merrick Garland, vowed to filibuster, or indefinitely delay, the nomination.
In response, Republicans, led by Mitch McConnell, threatened to simply rewrite the rules to eliminate the filibuster as a tool. Despite the threats, Democrats followed through on their promise. Earlier this week, Democratic minority leader Chuck Schumer announced he had the requisite 41 votes to filibuster Gorsuch’s nomination. Today, McConnell answered in kind by triggering the “nuclear option.”
What Happens Next?
Neil Gorsuch will be confirmed to the Supreme Court as early as this Friday. The move has larger ramifications for the future, however.
By allowing a simple majority to confirm nominees, the need for bipartisan support for future justices has essentially been eliminated. The change also means future presidents can nominate candidates at further ideological extremes without worry; if their party controls the Senate, then their pick will undoubtedly be approved.
This new process will lead to even greater ideological divides in the court, far from the more moderate stances that will benefit Americans as a whole. In light of the Senate’s actions, members from both parties have expressed reservations about eliminating the filibuster, with Senator John McCain (R-AZ) going as far as to call it a “bad day for democracy.”
Then again, the whole Garland – Gorsuch debate was never about what was good for the country, or even judges’ qualifications; it was about playing politics. The new rules ensure future nominations will be steeped in those leanings as well. And when the courts are controlled by party politics rather than acting as an unencumbered, independent judiciary, it’s the people who lose.