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.