The news bulletin with the most deadly sounding name out of Washington last week was not the 59 missiles fired on a Syrian airbase or any other kind of military venture. It was the nickname given to a change in Senate procedure carried out by Senate Republicans that changed the number of votes needed to end a filibuster on a Supreme Court nominee—“The Nuclear Option.”
Prior to Thursday, a Supreme Court nominee who had been filibustered needed 60 votes for cloture, or the ending of the filibuster. When the Democrats filibustered now-Associate Justice Neil Gorsuch, they effectively stalled his nomination for as long as the kept the filibuster, which hypothetically could have been forever. There are 52 Republicans in the Senate which meant that they did not have enough votes for cloture, so they decided to take a different route to proceed with the nomination.
Senate Majority Leader Mitch McConnell introduced a motion to change a cloture vote to simple majority. This motion required only the 51 vote majority that the Republicans already have and ended up passing, which allowed Republicans to then end the Democratic filibuster and proceed to the actual nomination of Gorsuch. The nomination also required simple majority, and so on Friday Neil Gorsuch was confirmed as the 113th Justice of the Supreme Court.
The nuclear option changes the balance of power in the Senate in the favor of the majority party. Democrats did the same thing a few years ago under Barack Obama for federal court judges so that they could fill out lower courts that Republicans were filibustering at the time, but they left the Supreme Court alone. The change at the Supreme Court level marks a significant alteration of senate procedure, severely limiting the power of the minority party to oppose the highest level judicial nominees.
Senator John McCain (R-AZ) described the vote before it happened as “a dark day in the history of the United States Senate.” This quote fell in line with his 2013 comments on the Democrats doing the same for federal court justices, calling it then a “breathtaking” breach of Senate rules. Mitch McConnell was also vehemently opposed to the Democrats version of the nuclear option, describing it as a rule to change the rules. Ironically, McConnell introduced and guided the rule change through the Senate and McCain voted in favor of the measure.
In the short term this change is a positive for the Republicans, as they have successfully ensured a return to a more conservative tilted court by placing Gorsuch in the spot vacated by Antonin Scalia. However, even the senators that voted for this warned that in the long run this is a risk to both parties.
John McCain described the dilemma of changing the rules, saying “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?”
For now, the Republicans may have no reason to be concerned, as they currently control Congress and the Presidency.