Analysis: What you need to know about the filibuster and the Supreme Court

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Photo by Molly Riley/Reuters

Photo by Molly Riley/Reuters

Many are the accusations. Deep is the muck. Here are some crisp answers about the filibuster and nuclear option in play in the battle over Neil Gorsuch’s nomination to the U.S. Supreme Court.

What is a filibuster? Exactly. It is a broad term. And misunderstood. The U.S. Senate states that a filibuster is “any attempt to block or delay Senate action on a bill or other matter by debating it at length, by offering numerous procedural motions, or by any other delaying or obstructive actions.” A more fun fact: the word “filibuster” comes from the Dutch word for pirate.

Where do 60 votes come in? This involves history. For its first 127 years, the Senate allowed any member to speak as long as they wanted. There was no way to stop them. Only decorum. This increasingly was used to derail bills, and in 1917 the Senate passed a rule (rule XXII) to curb the potential madness: a ⅔ vote could end debate. This is called cloture. The cloture standard was decreased to a ⅗ vote in 1975. With 100 senators, that means 60 votes.

What does that have to do with the “nuclear option?” Or Harry Reid? Now we are getting there. As President Obama took office, Republicans started blocking more nominees, requiring more 60-vote cloture motions. (Both sides used filibusters in modern times.) By 2013, Democrats faced a relative backlog on courts and filibusters of key players like Defense nominee Chuck Hagel. Then-Majority Leader Harry Reid decided if they could not win under the rules, Democrats would rewrite the rules of the Senate. (How he did it and how it works is a bit more complicated.) From then on, nominees only needed 51 votes, not 60.

Except Supreme Court nominees. That’s right, Reid lowered the bar for all nominees except the Supreme Court. Which is why GOP Leader Mitch McConnell, who does not have 60 votes, is considering going nuclear to confirm Judge Gorsuch.

Why is it so “nuclear?” The idea goes back to the ‘70s, but parliamentary master and former senator Trent Lott is credited with the term “nuclear option.” This is because it wipes out hundreds of years of a defining Senate trait — that the minority can wield substantial power. And it is dangerous to deploy. What helps your party now when you control power, could be toxic when you are once again in the minority.

So, what will it mean if McConnell goes nuclear? That remains to be seen, but at the least it will fundamentally change the calculus for selecting Supreme Court nominees. Presidents with control of the Senate will no longer need to pick nominees that can garner bipartisan support. Some argue it could open the door to abandon the 60-vote threshold on bills as well. But McConnell is a historian and devotee of the Senate and had given no indication such a change is on the table.

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