The U.S. Senate Careens Toward the Nuclear Option


APRIL 4, 2017

Photo: Getty

Presidential historians are coming to the conclusion that, with the possible exception of William Henry Harrison who actually died 31 days into his term, no incoming President has gotten off to a worse start than President Donald J. Trump.

Let’s look at the record so far.  The Trumpcare flop-eroo.  Insulting long-time allies (Australia, Germany) while heaping praise on dictators (Russia, Egypt).  Increasing proof that his administration colluded with Russia to tamper with the 2016 election.  Campaigning to “drain the swamp” while bringing in a gallery of gators from Goldman Sachs into his cabinet.  Ignoring daily intelligence briefings, preferring instead to get his foreign affairs information from early morning television (“FOX and Friends”).  Appointing as heads of various cabinet posts (Labor, Education, Environmental Protection Agency) individuals committed to destroying those very departments.  Without a scintilla of evidence, accusing his predecessor, President Obama, of committing a felony by wiretapping his office.  And now Trump ignores experts with experience and entrusts instead securing peace in the Middle East to his 36 year-old son-in-law Jared Kushner.  And on and on…

But there was always one ray of hope ahead for the Trump Administration — the expected confirmation of Judge Neil Gorsuch to the United States Supreme Court.

Trump’s nomination of Judge Gorsuch on January 31 prompted sighs of relief among Republicans because it was so normal.  Gorusch’s résumé was impressive, and even if some of his decisions were questionable, his selection gave the GOP hope that Trump may have turned a corner and will continue to be acting Presidential.  That, of course, didn’t happen.

But Judge Gorsuch appeared to be ready to sail through and be confirmed in the seat.  When questioned by the Senate Judiciary Committee, whose job it is to determine whether the Gorsuch nomination should be forwarded for a vote to the entire Senate, Judge Gorsuch deflected many questions about current cases by responding that he couldn’t answer them because they touch on issues that might come before the court.  Everybody knows that it’s just a dodge, but in recent years, the practice has become so widespread that no one gives it a second thought.

However, when Judge Gorsuch began refusing to comment on cases that are already settled law, on which any judge is perfectly free to comment, Gorsuch still covered up.  When he refused any comment on the landmark 1954 case Brown v. Board of Education, the Supreme Court case that ordered desegregation of public schools, Democrats on the committee began to smell a rat.  How difficult would it have been for him to say “Segregation is wrong, and the court was correct in ruling against it”?  But he didn’t.  I’m sure that Gorsuch’s handlers had coached him not to respond to any question about a case, but the judge oversold it, and by Monday, 42 Democrats had announced that they were going to vote against the Gorsuch nomination, leaving Judge Gorsuch with only 56 Senate votes for confirmation, four shy of the 60 votes he needs.

Faced with the prospect of another Trump defeat, GOP Senate Majority Leader Mitch McConnell announced that we would invoke “the nuclear option,” the common term used to describe a procedure where, if the party in power is losing, they can change the rules of the Senate to help them win.  In this case, the GOP can ask that the number of votes needed to confirm a Supreme Court justice be lowered from 60 to 51, allowing Gorsuch to get through.

But it comes with a price.  Once you take the nuclear option, you can’t go back to a 60-vote threshold, thus changing the nature of the Senate forever.  The Senate has always prided itself as “the deliberative body” (as opposed to the Wild West rodeo that is the House) and much more tradition-oriented.  So giving up the consensus-making requirement has become a tough call among thoughtful senators (John McCain said today than any Senator voting for the nuclear option is “an idiot”.)

The Democrats are not without blame in this — in 2013, they used the nuclear option to require only a simple majority vote on all judicial appointments that are not for the Supreme Court, so the precedent was set.

If McConnell pulls the trigger later this week, the party in power will be able to get almost anyone on the Supreme Court, so if Trump is elected to a second term, he will have the chance to appoint as many as 3 or 4 new Justices, no matter what their qualifications.  Can you imagine Supreme Court Justice Omarosa?  It could happen.

We’ll find out later this week.  Stay tuned.