The Nuclear Option and Neil Gorsuch

By Eleanor Wertman, MPH

What is the nuclear option, and what does it have to do with Neil Gorsuch?

          Before Thursday, April 6, a minority of Senators could block the appointment of a Supreme Court nominee. While a Supreme Court appointee could be confirmed with a simple majority of votes, opponents could obstruct a candidate’s appointment indefinitely by filibustering. This filibuster could only be interrupted via a cloture motion, which requires 60 votes and ends floor debate on an issue to force a final vote. The “nuclear option” is a Senate procedure to override a rule or precedent with a simple majority of votes, rather than a supermajority of 60.

          Last Thursday, Republicans deployed the nuclear option after a majority of Senate Democrats committed to filibustering the appointment of Neil Gorsuch to the Supreme Court. The use of the nuclear option allowed Republicans to override the rule requiring 60 votes to end a filibuster of a Supreme Court nominee.

Have Democrats used the nuclear option to confirm nominees in the past?

          Yes, although under different circumstances. In 2013, former Senate leader Harry Reid (D-NV) used the nuclear option to end Republican filibusters of lower court and executive branch nominees. However, Reid’s decision came in the face of unprecedented Republican opposition to Obama’s nominees. Prior to Obama’s presidency, the Senate had used the filibuster to block 68 nominees to various positions; by 2013, Republicans had blocked 79 of Obama’s nominees. Republicans blocked so many of Obama’s judicial appointments that Donald Trump could have the opportunity to fill more judicial vacancies than any first-term president since the 1970s. Republican opposition to all Obama appointees was so strong that they prevented moderate Supreme Court nominee Merrick Garland from having a confirmation hearing at all.

Why does it matter that Senate Republicans used the nuclear option to confirm Neil Gorsuch to the Supreme Court?

          The 60 vote threshold to overcome a filibuster was seen as a way to prevent partisanship in the appointment of Supreme Court justices and encourage presidents to appoint more moderate candidates. Gorsuch, however, was far from a moderate choice. Democrats cited numerous reasons for opposing Gorsuch, including his ambiguous confirmation hearing responses; his attitudes towards the rights of women, people with disabilities, and laborers; and the ongoing federal investigation of the Trump administration’s ties to Russia. By lowering the vote threshold to a bare majority to confirm a right-wing, anti-woman, anti-labor Supreme Court Justice to the seat stolen from Obama nominee Merrick Garland, Senate Republicans have opened the door for unprecedented partisanship in the Supreme Court Justice selection process.

What can I do to resist?

          Unfortunately, the nuclear option has been invoked, and Neil Gorsuch has been confirmed to the Supreme Court. However, the fight is not over yet. First, we must ensure the 60-vote threshold for breaking filibusters is preserved for other Senate proceedings, including legislation. Sixty-one senators from both sides of the aisle, including Sens. Tillis and Burr, have already sent a letter to Senate leaders encouraging them to maintain the filibuster threshold. We must hold Tillis and Burr accountable to their promises and keep an eye out for future threats to the filibuster.

          Additionally, Tillis and Burr need to hear our outrage that the nuclear option was invoked to confirm a Supreme Court nominee whose views directly threaten reproductive rights, the rights of laborers, the rights of people with disabilities, and more. Use the below 5 Calls script to contact Burr and Tillis today.

Hi, my name is [NAME] and I'm a constituent from [CITY, ZIP].

I'm calling to express my outrage that Sen [NAME] voted to use the nuclear option to confirm Neil Gorsuch to the Supreme Court seat stolen from Obama nominee Merrick Garland. The use of the nuclear option to confirm this candidate has permanently introduced dangerous partisanship into the Supreme Court Justice selection process.

[IF LEAVING A VOICEMAIL: please leave your full street address to ensure your call is tallied]