The next escalation in the great judicial war is upon us. As Senate Democrats gird themselves to filibuster President Trump’s Supreme Court pick, Republicans may just take a page from Democrats’ 2013 playbook and invoke what’s known as the nuclear option — a change to Senate rules that would effectively block a filibuster of Trump's Supreme Court nominees, Neil Gorsuch included.
Current Senate rules require Supreme Court nominees to meet a 60-vote threshold in order to be confirmed, which gives the minority party an incredible amount of power in blocking the nominee's confirmation — exactly as the Founding Fathers intended. Invoking the nuclear option, as Senate Democrats did in 2013 with lower court nominations, would make the confirmation a simple majority vote. In order words, Gorsuch and every future Supreme Court nominee would only need 51 votes to be confirmed — dramatically weakening the minority party's ability to block a nominee.
For decades, with the increasing politicization of the bench has come an even greater politicization of the Supreme Court nomination process. What began with Robert Bork will now culminate in a nuclear vote for Neil Gorsuch and all the rest of Donald Trump’s nominees, with the losing party naturally up in arms.
Delaware Democrat Chris Coons — who became the necessary 41st filibuster pledge to force the GOP’s hand on Gorscuh's nomination — called the prospect of lowering the vote threshold “tragic” just last week.
But, “in war,” the Greek writer Aeshcylus reminds us, “truth is the first casualty.” The shoe was one the other foot for several of these same Democrats just three and a half years ago. Back then a Democrat Senate majority led by former Senator Harry Reid ended the filibuster for circuit court level nominees.
Here are some of their greatest hits from ‘Nuclear 2013.’
1. “[Democrats would] much prefer the risk of up-or-down votes in majority rule than the risk of continued total obstruction. That’s the bottom line, no matter who’s in power.” – Sen. Chuck Schumer, D, N.Y.
2. “It’s never, ever, ever been like this. You reach a point where your frustrations just overwhelm and things have to change.” – Sen. Dianne Feinstein, D-Calif., justifying the nuclear option to The Daily Beast.
3. “Every senator takes an oath of office promising to support and defend the Constitution. No senator takes an oath to protect the filibuster.” – Sen. Elizabeth Warren (D-Mass.) in The Boston Globe
4. "This is a terrific vote for the U.S. Senate." – Sen. Jeff Merkley, D-Ore.
5. “We all have heard the story of President Washington saying the Senate is a cooling saucer, but never was the Senate intended to be a deep freeze ... [y]et that is what it has become." – Sen. Jeff Merkley, D-Ore.
6. “I’m just so encouraged now that we’re going to be able to — without filibusters — put people on the courts in an orderly way." – Tom Udall, D-N.M.
7. If there are differences in the Senate, then debate should be had, people should vote their conscience, they should vote on behalf of their constituents, but they should vote. That’s what they’re there to do. And ultimately, if you got a majority of folks who believe in something, then it should be able to pass." – President Barack Obama
8. "Americans sent us here to get things done, but in recent years, the minority has filibustered again and again — not to slow action out of substantive concerns, but for political gain. Any president — Democrat or Republican — should be able to make their necessary appointments." – Tom Udall
9. "The Senate has spoken. It has said we have tried to restore, through mutual understanding, the norms and traditions of the Senate time and time again, and each time the minority has failed to uphold its position." – Jeff Merkley
10. "Ending the abusive filibuster on nominations is a big step toward restoring the functionality of the Senate, and that matters for all of us. I hope we continue to look at ways to make this legislative body work better. We face big challenges as a nation, and we need a Congress that can take on those challenges." – Jeff Merkley
Perhaps one of the most prescient and telling quotes for the situation was uttered by then-Majority Leader Harry Reid as he walked out of the chamber following the 2013 vote:
11. "When the Republicans are in power, these changes will apply to them as well. That's simple fairness."
As Guy Benson points out in greater detail at TownHall, the GOP’s decision — while unfortunate — has been precipitated by years of Democrat-driven obfuscation and obstruction on judicial nominations. Democrats have made their beds, now they’ll have to get nuked in them.
Nate Madden is a Staff Writer for Conservative Review, focusing on religious freedom, immigration, and the judiciary. He previously served as the Director of Policy Relations for the 21st Century Wilberforce Initiative. A Publius Fellow, John Jay Fellow, Citadel Parliamentary Fellow and National Journalism Center alumnus, Nate’s writing has previously appeared in several religious and news publications. Follow him @NateMaddenCR and on Facebook.
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