Neil Gorsuch, the filibuster and the nuclear option: what you need to know

Ben Jacobs in Washington

The US Senate is facing a political crisis, the result of a standoff over Donald Trump’s supreme court nominee, Neil Gorsuch. Senate Democrats have pledged to filibuster the nomination and if they do, the majority leader, Mitch McConnell, has said he will alter Senate rules to ensure Gorsuch is confirmed.

The high stakes are accompanied by a host of Senate jargon and arcane procedures that have come to define the chamber, resulting in one of the most consequential showdowns in recent congressional history being weighed down byinside baseball terminology.

What is a filibuster?

This is an effort by a group of lawmakers to delay or block the Senate from voting on a legislative measure (either a bill or a presidential appointee’s confirmation). To end debate on an issue, the Senate has a requirement for “cloture”. For most issues, this means that three-fifths of its members – or 60 out of 100 – have to agree to end debate and move to a final vote. Any attempt to block cloture is called a filibuster.

How does it work?

While filibusters are viewed in popular culture as something out of Mr Smith Goes to Washington, with Jimmy Stewart holding the floor in a desperate marathon speech, it is far more banal in the modern era. Since reforms in the 1970s (which also reduced the margin needed to avoid a filibuster from two-thirds to three-fifths), gone are the days of floor soliloquies. Instead, there is a simple cloture vote and the filibuster is sustained if 60 senators do not vote to end debate and move on.

What is the ‘nuclear option’?

The nuclear option is using a simple majority vote to change Senate rules and end a filibuster. This can be triggered through a series of procedural votes that reinterpret Senate precedent, all of which only require a simple majority. This was done once before in 2013.

What happened in 2013?

When the Senate had a Democratic majority, the rules were changed to abandon the filibuster on all nominees, save for those for the supreme court. The then Senate majority leader, Harry Reid, pushed this through to counter what he viewed as Republican obstruction of Obama nominees. The use of the nuclear option would extend this precedent to also include nominees to fill vacant seats on the supreme court.

Is this the only way Gorsuch can be appointed?

If the nuclear option somehow fails and Senate Republicans do not muster a majority to implement it (which would require at least three defections from their ranks), there is still one avenue for Gorsuch to be appointed to the supreme court, at least temporarily.

Article II, section 2 of the constitution allows for recess appointments if the Senate is not in session. According to a 2014 supreme court decision, the president can make such an appointment only if the Senate is out of session for at least 10 days. If this happens, the appointment lasts until “the end of the next session of Congress”. Although recess nominations for judicial appointees to any position have been rare in the modern era, the power does apply to the supreme court and has been used to fill vacancies there in the past: Dwight Eisenhower appointed Chief Justice Earl Warren in 1953, Associate Justice William Brennan in 1956 and Associate Justice Potter Stewart in 1958.

However, with Senate Republicans united around Gorsuch and the nuclear option, it is unlikely that this will happen.

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