In the Senate, the weapons of war are procedural parliamentary tactics. These rule changes, motions and other maneuverings are complicated. But they’re also important and worth understanding — especially when they determine the outcome on things like a Supreme Court nomination.
Here’s a quick explanation of what exactly Senate Republicans plan to do Thursday when they deploy the “nuclear option” to confirm Neil Gorsuch to the Supreme Court. Be warned: some of this is fascinating and well-designed Senate rule-making. Some of it is incredibly convoluted.
The mission: For Republicans, it is to confirm Neil Gorsuch as the next Supreme Court justice.
The problem: Under current Senate rules, Supreme Court nominations may be filibustered, and moving past that to a final vote requires 60 votes. But Republicans, who hold 52 seats in the Senate, do not have enough votes without the support of at least eight Democrats.
So what’s the GOP doing? Changing how that rule works, by requiring only 51 votes for Supreme Court nominees. That’s the “nuclear option,” which would change years of Senate precedent. (Yes, Democrats opened this box in 2013 when they did the same thing for all other executive branch nominations.)
What happens first? The easy part. The Senate will take a vote everyone expects to fail. That’s the vote on cloture — or to end the filibuster — on the Gorsuch nomination. It will likely get 55 votes, not 60. Watch for Senate Majority Leader Mitch McConnell (R-Ky.) to switch to a ‘no’ vote before the end, setting up important moves ahead.
Then? Get a beverage and snacks. Things will turn both more fascinating and complex.
First? McConnell asks for a revote. If this follows the 2013 playbook, McConnell will call for a revote on cloture. (Only those who have already voted ‘no’ can ask for this, which is why we expect McConnell to initially vote ‘no.’) Why ask for a revote? One reason is it brings back the topic — BUT under rules for a revote/reconsideration, there is no debate on the next vote.
Speed bumps. After this happens, Democrats led by Minority Leader Chuck Schumer (D-NY), can deploy a wide-variety of parliamentary tactics to slow things down and indicate their displeasure. These include calling for a vote to adjourn and many other possibilities. All will fail. The question is, how many they will use and how long it will go on.
Next? The nuclear trigger. A mighty point of order. We expect McConnell to raise a point of order, saying the rule on Supreme Court nominations requires a majority vote on cloture — even though it actually has required 60 votes for years. That’s how the Senate’s presiding officer, consulting with the parliamentarian, will likely respond, telling McConnell that he is wrong (“point of order not sustained”) about needing just a majority.
A key concept at this point: Republicans are not technically changing the rules of the Senate. That requires a two-thirds vote. But those rules are applied strictly using precedent. And Republicans, under this plan, would be changing the precedent that a 60-vote standard is applied to Supreme Court filibusters.
Then? The nuclear launch. After the presiding officer rules against him, watch for McConnell to move to overrule that decision. Here’s what’s going on. McConnell is setting a new precedent by first asking if a majority vote is enough to end the filibuster, then getting a ruling that it is not and following that with a vote to overrule and reverse that decision. Overruling that decision sets McConnell’s point of order — for a majority vote — as the new precedent. (Super geek note: Republicans will vote ‘no’ on this because the vote asks if the presiding officer is correct. To overrule, they need to vote ‘no.’)
Feel free to re-read the above paragraph. I wrote it and still needed to do that.
Finally, Gorsuch moves forward. With the new, lower vote threshold established, Republicans will hold a do-over cloture vote to end debate on the Gorsuch nomination. They’ll need just a majority to win and they will get it.
So, when will Gorsuch be confirmed? That comes Friday. The cloture vote will start the clock on a 30-hour period of debate. That will get us to Friday evening, and a final confirmation vote.
And that’s it. Senators go home for recess. And, if all goes according to Republicans’ plans, Neil Gorsuch becomes the next Supreme Court justice.