Tuesday, April 4, 2017

Judge Gorsuch Goes to Washington: Some Thoughts on Filibusters, Cloture, and the So-Called “Nuclear Option”

Republicans Plan to Follow What the Democrats Did in 2013

The Senate Judiciary Committee has cleared the nomination of Judge Gorsuch to the Supreme Court. Now the real maneuvering begins, because we learned that the Democrats have enough votes under the current rules to filibuster the nomination and block cloture. In a nutshell, this means that the Democrats can block the full Senate from voting to confirm, even though confirmation would require only a simple majority vote. I thought it might be useful to share some thoughts regarding this topic -- especially with all the jargon being bandied about -- as we head down the path to what most expect will be Judge Gorsuch’s eventual confirmation.

The Senate Confirmation Process Only Requires 51 Votes 

The word confirmation actually is not used in the Constitution to describe this process; in reality, the Senate is “consenting” to the nomination. Under the Appointments Clause in Article II, the President nominates Supreme Court Justices and then appoints them “with the Advice and Consent of the Senate.” All that is required for consent is a simple majority vote. The assertion that anything more is required is just wrong. 

Filibuster and Cloture

Neither term is mentioned in the Constitution. A filibuster refers to the ability to hold the floor and block a vote from taking place. The Senate does not have general rules limiting the time that Senators can debate issues, because the notion has been that Senators should be allowed to speak as long as they want. At President Wilson’s urging, the Senate in 1917 adopted cloture in Rule XXII as a device to end filibusters. Cloture starts the process of closing off further debate and allowing voting to proceed. In simple terms, think of cloture as closure of a delay tactic -- filibustering.

The November 2013 Reinterpretation by Democrats Set the Stage for Republicans 

The Senate may change the cloture rule, but that is not a simple task under the rules. As a result, the Democrats in 2013 actually reinterpreted the cloture rule in order to confirm several appellate court judges over Republican opposition. The author of a Congressional Research Service report described what happened:
In summary, in floor proceedings on November 21, the Senate established a new precedent by which it has reinterpreted the provisions of Rule XXII [the cloture rule] to require only a simple majority to invoke cloture on most nominations. The effect of the Senate’s new precedent is to lower the vote threshold by which cloture can be invoked on a nomination other than to the U.S. Supreme Court from three-fifths of the Senate to a simple majority of those voting, thereby enabling a supportive simple majority to reach an “up-or-down” vote on confirming the nomination.
Now all the Republicans need do is reinterpret the rule to include Supreme Court nominations and an up or down confirmation vote will take place, which will require only 51 votes to confirm.

Nuclear Option or Constitutional Option?

While most everyone uses the term nuclear option, the truth is that requiring only a majority vote to end a filibuster of a nomination properly implements the Appointments Clause. The Senate is allowed to make its own rules, such as Rule XXII, but it cannot unilaterally impose a requirement at odds with its constitutional responsibility to provide “Advice and Consent” by adding a supermajority requirement.

What Happens Next?

A vote to advance the Gorsuch nomination is scheduled for Thursday. Assuming that the Democrats make good on their threat to filibuster and block cloture, I would expect the Republicans to follow the model created by Senator Reid and the Democrats in 2013 and change the interpretation of the rule to allow an up or down vote on Supreme Court nominations. This could all be over by the weekend.