Senator Majority Leader Mitch McConnell said Tuesday, “If you truly cannot support the nomination of this eminently qualified nominee, then at least allow the bipartisan majority of the Senate that supports Gorsuch to take an up-or-down vote. You already deployed the nuclear option in 2013. Don’t trigger it again in 2017.”
Following Democrats filibuster attempt of Supreme Court nominee Neil Gorsuch, Republicans have invoked what is known as the “nuclear option”, which changes the rules for ending a filibuster or debate. Instead of needing 60 votes to end a filibuster, the Senate now only needs 51, which in effect kills all filibusters today and going forward.
The precedent was set in 2013 when Democrats also changed the rules of the Senate and used the nuclear option, but had limited it to all positions except Supreme Court nominations. Now all that is needed to confirm any of Trump’s nominees is a simple majority of 51 votes, and only 51 votes can end a filibuster.
When Antonin Scalia unexpectedly died in February of 2016, Barack Obama nominated Judge Merrick Garland to take his place. Unfortunately, given that it was an election year, the vote was never held and Garland was never confirmed. Democrats saw this as Republicans trying to block the right of the current President to nominate someone of his choosing for the court, but Republicans pointed out that it was customary for nominees not to be confirmed if it is during an election year.
Even Joe Biden, in 1992, called for Presidents not to nominate Supreme Court Justices in the midst of a heated election.
A main issue during the 2016 election was who Trump would nominate for the Supreme Court, and when Trump named Gorsuch as his nominee conservatives were thrilled. This also meant that Democrats were outraged, but during the Gorsuch hearings, no scandals emerged. His record and view on law and the Constitution were solid. So why are Democrats putting up such a fight?
An objection raised by Democrats is that Gorsuch may not rule in “their favor” on certain issues. There is a very clear difference in view over what the role of the Supreme Court should be. In Gorsuch’s eyes (and Scalia’s as well) the role is to abide by the Constitution only, and not allow popular opinion or ones own personal beliefs to be involved in a ruling. Democrats’ view is that, when needed, it is perfectly acceptable to legislate from the bench. Go against the Constitution if it’s popular.
Democrats have only themselves to blame for McConnell invoking the nuclear option. The precedent had been set by Democrats, and even after warnings from Republicans, they attempted to filibuster the nomination of Neil Gorsuch, forcing the Republicans hand. It is now only a matter of time until Neil Gorsuch is sitting on the Supreme Court, respectfully filling the void of Antonin Scalia.