After (and before) Republicans used the nuclear option to confirm Justice Gorsuch, liberal pundits and politicians claimed his seat was stolen and the Republican move was radical and illegal. These people are wrong or at the least, intellectually dishonest. Here’s why.
Filibuster: A filibuster is a tool used by the minority party to forestall a senate procedure. To end a filibuster the senate must have three-fifths, or 60, votes in favor of cloture.
Nuclear Option: The nuclear option is used by the majority party to reduce the number of votes required for cloture to a simple majority.
Claim 1: The Republicans, in an unprecedented move, held Justice Scalia’s seat hostage by not moving to confirm Merrick Garland, President Obama’s nominee last spring.
Reality Check: The Democrats set the precedent when it was Republican judicial nominees under consideration. In 1992 during an election year Senator Joe Biden (yes the same Joe Biden) stated if a seat on the Supreme Court should become available during the last year of his term, president George H.W. Bush should follow “the practice of a majority of his predecessors and not, and not, name a nominee until after the November election is completed.” Biden, who was the chairman of the Senate Judiciary Committee backed up his talk by not holding hearings for 32 Bush appointees. Maybe Vice-President Biden’s views have changed, but let’s not say the Republicans stole a seat for following the “Biden Rule”.
Claim 2: By invoking the nuclear option Republicans broke Senate tradition to force through a nominee.
Reality Check: This claim requires a bit of storytelling. Let’s go back to 2003 when Democrats, then the minority, were filibustering President George W. Bush’s nominees. Republicans, as you can imagine, were not very pleased about this but did not invoke the nuclear option. Nor did they invoke it in 2005 when Democratic filibusters continued. After the Obama Administration began in 2009 Republicans, now the minority said hey, two can play at that game! And they began filibustering Obama’s appointees.
Democrats, as you can imagine, were not very pleased about this and in 2013 for the first time in American history invoked the nuclear option. This allowed for a simple majority vote on all nominees except for the Supreme Court, effectively ending the ability of the minority party to prevent a nominee going through.
This seemed good and well at the time to the Democrats in the majority, but now in the minority again, they would very much like to avoid the nuclear option being dropped on them. But it was, and as a result a nominee for the Supreme Court can no longer be filibustered. Do not however, mistake the nuclear option’s ending the filibuster for a Supreme Court nominee as lowering the number of votes necessary for confirmation; a simple majority is all that is required for confirmation and this has not changed. Both Justices Alito and Thomas were confirmed with less than 60 votes.
The point of this article is not to convince anyone their respective party is right or wrong; I for one think the nuclear option goes against the spirit of the Constitution and its protection of the minority from the majority seen with the electoral college and how we amend the Constitution itself. However, do not be fooled by political ploys demonizing any party. While the “they started it” defense is weak, both parties need to be wary of the precedent they set and the consequences it has. It is highly likely multiple Supreme Court vacancies will occur during President Trump’s term(s) and, should Democrats remain in the minority, they will have no bargaining power. So when that time comes, remember the Biden Rule and the 2013 Democratic nuclear option and maybe you won’t get caught up in the partisan politics.