The U.S. Senate is about to “go nuclear” to aid Donald Trump’s Supreme Court nominee
For decades, members of both political parties in the United States Senate have discussed the idea of ending the “60 vote rule” – the requirement that the minority can demand a supermajority vote to pass extremely important and controversial legislation. In recent years, there has been some erosion in the rule, but as of today, the rule remains in place when it comes to the monumentally important matter of Supreme Court nominations.
Lacking the 60 votes required for cloture, Senate Majority Leader Mitch McConnell (R-KY) plans to confirm Donald Trump’s Supreme Court nominee this week using a procedure that he himself once decried as breaking the rules to change the rules.”
As Israel goes on to explain, the Senate is expected to vote to do away with the 60 vote requirement – a rule change that only requires a simple majority of 51 votes – and then follow that up with a vote to confirm Donald Trump’s nominee for the Supreme Court, Neil Gorsuch, with something well south of 60 votes. This action is often referred to as the “nuclear option” by political observers because it will fundamentally alter the way the Senate (and the American government) do business.
Though he said Monday that he would vote with McConnell for the move, Sen. John McCain (R-AZ) said Tuesday that his party is doing something terrible. Asked by CNN’s New Day Alisyn Camerota whether he was comfortable with his party’s plan to invoke the so-called ‘nuclear option.’ He responded bluntly that he was not.
‘I think it’s a dark day in the history of the United States Senate,’ he lamented, though he said he expects it is going to happen. ‘It’s interesting that Republicans were dead set against it when my former colleague Harry Reid invoked it with the judges, but now it seems to be okay.’
The Arizona Republican then observed that lowering the threshold now will have long-term ramifications for the Senate. ‘If you can do this with 51 votes, what do you think the next nominee is going to be like? What do you think will happen when eventually Democrats are in majority in the Senate? That’s going to happen sooner rather than later. I hope later.’”
All indications, at this point, are that North Carolina senators Richard Burr and Thom Tillis will go along with the change.
The anti-“nuclear” argument
There are a lot of reasons that the Senate’s “nuclear” action is an extremely worrisome development. Here are three of the most important:
1. Donald Trump is under investigation for potentially outrageous crimes that threaten the very legitimacy of his presidency.
It’s hard to overstate the magnitude of the misdeeds of which the president may soon formally stand accused in the coming months if the investigation into his web of Russian ties is allowed to proceed. Already, we know that the President and his aides have engaged in highly questionable behavior vis a vis a hostile foreign power, while quite possibly enriching themselves in the process. At such an unprecedented moment in American history, it strains the imagination to contemplate that senators would be willing to consider approving any non-consensus nominee for a lifetime appointment to a Court that could, quite conceivably, be called to rule on critical aspects of the Trump administration’s actions and future.
Here’s federal courts expert Michele Jawando of the Center for American Progress:
While the Senate rushes to confirm Judge Gorsuch, the administration finds itself being pulled deeper and deeper into the scandal surrounding the Trump campaign’s possible collusion with Russia. Former national security adviser Michael Flynn—who was allegedly fired for providing misleading information about contacts with Russian officials—has asked for immunity from prosecution in exchange for providing information to investigators. This investigation raises fundamental questions about the president’s legitimacy, and we cannot allow President Donald Trump to make a lifetime appointment to the Supreme Court until these questions are resolved.
This is not the time to throw out Senate traditions of collegiality and bipartisanship just to get the president’s Supreme Court nominee in place. When Senate Democratic leaders changed the threshold for lower-court nominees in 2013, they only did so after four years of negotiations failed. And they kept the 60-vote threshold for nominees to the highest court in the land. Instead of changing the rules, the Senate should tell the White House to change the nominee to a judge who can receive bipartisan support.”
2. Neil Gorsuch is an extreme ideologue who will push the Court hard to the right for decades to come.
As was explained by the nonpartisan Supreme Court watchers at the Alliance for Justice in a recent and damning examination of his record, Gorsuch will be one of the most extreme ideologues to sit on the Court in memory:
Throughout his life, Judge Gorsuch has been driven by an ultraconservative ideology. In fact, Neil Gorsuch’s judicial philosophy is clear. In his own words, he believes that judges should “strive . . . to apply the law as it is, focusing backward, not forward.” It is no surprise that he has been a vocal critic of courts advancing core constitutional rights, such as the right to marry and essential rights for women; and as a judge, he has consistently voted to undermine essential rights and legal protections. Judge Gorsuch’s view of the Constitution is one that would indeed take our nation ‘backward’ to an earlier era, where women, people of color, persons with disabilities, workers, LGBTQ Americans, and those interacting with the criminal justice system have fewer rights and legal protections….
Judge Gorsuch has repeatedly shown hostility toward the efforts of vulnerable populations to use the courts to protect their constitutional rights. He has, moreover, consistently downplayed constitutional abuses by government officials. And he has placed the rights of corporations over those of other Americans, weakened critical acts of Congress, and advocated for overturning long established legal doctrines that ensure the federal government can properly enforce protections for the American people.”
3. Ending the 60-vote rule will further empower and embolden the radical, big money Right.
Though Gorsuch clearly enjoys the strong support of the anti-choice/anti-equality religious right, the group that his nomination is ultimately designed to please most is the Koch Brothers/Heritage Foundation wing of the conservative movement. That’s why massive amounts of dark money have been pouring in to prop up his nomination. If you haven’t watched Senator Sheldon Whitehouse of Rhode Island’s Q&A on the subject of dark money with Gorsuch during his confirmation hearings, you should check it out here.
Conservative spending has already swamped the liberal opposition to Neil Gorsuch’s nomination to the Supreme Court in the weeks leading up to his confirmation hearings, which are set to begin Monday in the Senate.
By a nearly 20-to-1 margin, conservative groups have vastly outspent their liberal counterparts on television advertising on behalf of Gorsuch, according to Republican estimates of ad purchases since the end of January. Most of the conservative fire has been directed at seven Democratic senators in states where President Trump won last year, trying to push them into beating back an expected blockade of Gorsuch’s nomination from liberal Democrats.”
In other words…
Let’s fervently hope that a handful GOP senators come to their senses and say “no” to this effort to raze the few tiny plots of common ground that remain in Washington and thereby shove the pendulum hard right at a critical moment in the history of the Republic. Unfortunately, at this point, there seems little chance of averting the ideological war that the impending conservative “nuclear strike” seems likely to spark. Progressives would likely do well to gird for a lengthy and bitter battle.