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The Senate Took The Nuclear Option

How The Senate Failed America

Graphic+by+Trenton+Blanchard+featuring+Adobe+Stock+photos
Graphic by Trenton Blanchard featuring Adobe Stock photos

Graphic by Trenton Blanchard featuring Adobe Stock photos

Graphic by Trenton Blanchard featuring Adobe Stock photos

Trent Blanchard

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On April 6th Republican Senators voted to push through the “nuclear option,” clearing the way for the confirmation of Supreme Court nominee Neil Gorsuch and ending a long standing tradition of bipartisanship cooperation on matters pertaining to the Supreme Court.  

The Senate’s role in filling vacancies in the Supreme Court begins with a several day confirmation hearing in which members of the Senate Judiciary Committee question the nominee and outside witnesses about the nominee’s qualifications before allowing the Senators to further question the nominee in writing. Following this, the Senate begins debate on the nominee that can only be ended by 60 votes in favor of the motion to end before the actual confirmation vote can occur (Editor Note: This is called invoking cloture). With only 52 seats in the Senate, Republicans did not hold the supermajority needed to end debate without help from defecting Democrats, and while 4 would vote yes, it still wasn’t enough to stop a Democratic filibuster. This paved the path to the use of the nuclear option by Senate Republicans, which was achieved in a 52-48 vote straight down the party line.

 

The idea behind the nuclear option dates back to 1917 when an opinion by Democratic Senator Thomas J. Walsh stated that the Constitution allows for a Senate to change the rules from prior Senates through a simple majority vote. In essence this meant that any issue voted on by the Senate can be decided solely by any group that possesses enough support to win a simple majority vote (51 Senators, or 50 plus the Vice President) regardless of existing requirements in place to protect the say of minority opinions in the Government. An advisory opinion by Richard Nixon in 1957, then Vice President and therefore President of the Senate, gave further support to the idea then known as the “constitutional option.” The term nuclear option was first coined in 2003 by Republican Senator Trent Lott meant to compare the consequences if such steps were taken by either party in the Senate to the fallout of nuclear weapon strikes.

 

Just 2 years later in 2005 the first real attempt at using the nuclear option was undertaken by Republican Senators. Led by Majority Leader Bill Frist, Senate Republicans threatened to use it to put an end to Democratic filibuster of judicial officials nominated by then President George W. Bush. The action was avoided however when the so-called “Gang of 14”, a bipartisan group of 7 Republican and 7 Democratic senators, vowed to oppose any attempt to use the nuclear option and any further filibusters of judicial nominees. In explaining their decision to form this coalition against the nuclear option members cited fears of what the Senate would become in the wake of this drastic step with Republican John Warner of Virginia saying, “What would happen to this Senate if the nuclear option were done? No one was able to answer that to my satisfaction.”

 

Warner’s fellow gang member, Democrat Robert Byrd of West Virginia continued saying, “We have lifted ourselves above politics, and we have signed this document in the interests of the United States Senate, in the interest of freedom of speech, freedom of debate and freedom to dissent in the United States Senate.”

 

However, there would be no such gang in 2013. In the wake of the beginning of then President Obama’s second term, the nuclear option was threatened three times by Democrats before it was finally enacted for the first time in the history of the Senate on November 21, 2013. Using a simple majority vote (which the Democrats held at the time), the Senate rules were changed so that only a simple majority of 50 votes, rather than the supermajority of 60 previously required, to end filibuster on nominees for executive and judicial positions such as cabinet members and district court appointments. However, Supreme Court nominees were exempt from these new rules and as such, still required a supermajority vote to end filibuster and begin the confirmation vote. But not anymore.

 

In 2013, of the 7 Democratic members of the gang only 2 still held office: Mark Pyror of Arkansas and Mary Landrieu of Louisiana. While Senator Pyror voted against the nuclear option, one of three Democratic defectors in the vote, Senator Landrieu stayed the party line and voted in favor of the action she had helped prevent just 8 years prior. In 2017, only 3 of the 7 Republican senators still held office: Susan Collins of Maine, Lindsey Graham of South Carolina, and John McCain of Arizona. All three voted in contrary to the stance they held in 2005.

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The Senate Took The Nuclear Option