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Title: Here’s The 10 Step Process to Engage The Senate’s ‘Nuclear Option’
Source:
Reason
URL Source: https://reason.com/blog/2017/04/04/ ... -10-step-process-to-engage-the
Published: Apr 4, 2017
Author: Eric Boehm
Post Date: 2017-04-05 22:59:25 by Tooconservative
Keywords: None
Views: 1227
Comments: 6
That number is key in Congress' 100-member upper chamber, where 60 votes are required to do pretty much anything (except appoint federal judges to courts other than the Supreme Court, but more on that in a minute). If Republicans can't get 60 votes to close off debate on Gorsuch's nomination, Democrats would be able to filibuster and grind the Senate to a halt until Gorsuch is withdrawn from the confirmation process. The 60-vote threshold in the Senate is a somewhat unique element in parliamentary bodies around the world and one of the things that makes the U.S. Senate "the world's most deliberative body." It's also something of an illusion, just like all the other rules that govern how Congress operates. That's because all the rules can be rewritten with a simple majority vote—yes, even rules that say a super-majority is needed for this or that. The filibuster has survived for so long purely because of a bipartisan, institutional belief that it matters. Any group of 51 senators (or fewer, in the days when the nation had fewer states) could have killed the filibuster at any time, but that great protection against majoritarianism carries on, counter-intuitively, because no majority has ever sought to kill it—probably because all majorities eventually become minorities, and no minority has ever made the mistake of goading the majority into killing it, as the Democrats appear willing to do this week. Still, this isn't the first time the filibuster has been weakened substantially. Democrats struck the first blow against the filibuster in 2013 by rewriting the rules so the 60-vote threshold no longer applied to all federal court appointments except appointments to the Supreme Court. It's widely assumed that if Republicans can't get eight Democrats to vote in favor of cloture on Gorsuch this week, Senate Majority Leader Mitch McConnell (R-Kentucky) will trigger the so-called "nuclear option" and abolish the filibuster for Supreme Court nominees. Here's how it would go down—with Republicans following the same path as Democrats did in 2013. Step 1: The Senate will vote to invoke "cloture," which ends debate on whatever issue is before the chamber. Under Rule XXII, the Senate requires 60 votes to approve cloture and end a debate. Step 2: Assuming cloture fails (if it succeed, no nuclear option would be necessary), a Republican senator will move to reconsider—aka, revote—on the cloture motion. After it fails a second time, Majority Leader Mitch McConnell (R-Kentucky) will raise a point of order declaring that all Supreme Court nominees can be approved with a simple majority vote. Step 3: The Senate President pro tempore gets to rule on whether points of order are approved (that is, in line with the Senate's rules) or overruled, based on Senate rules and precedent. In this case, Senate President Orrin Hatch (R-Utah) would presumably rule that McConnell's point of order is overruled, because Senate rules and precedent say cloture is required for Supreme Court nominees. Step 4: Here's where the change really happens. McConnell gets overruled, but he's allowed under Senate rules to appeal the ruling of the Senate president. If he wants to invoke the "nuclear option," he will appeal Hatch's decision, which triggers an immediate vote (meaning there can be no debate before the vote) on Hatch's ruling. Step 5: The vote on the Senate president's ruling is a simple majority vote. If a majority of the Senate votes "nay" on Hatch's interpretation of the Senate rules, a new precedent is set to guide future votes on U.S. Supreme Court nominees—namely, a precedent saying cloture is not required. Step 6: Democrats will likely appeal that vote, with Senate Minority Leader Chuck Schumer (D-New York) raising a point of order and asking the President pro tempore if cloture is required for U.S. Supreme Court nominees. Step 7: Hatch will cite the just-taken vote as a new Senate precedent that the threshold for approving Supreme Court nominees is a simple majority. He will overrule Schumer's point of order. Step 8: Schumer can appeal this ruling and call for a vote on the Senate President's ruling. Just like what happened in Step 4, this triggers an immediate vote. Step 9: The Republican majority will defeat Schumer's appeal, and Hatch's interpretation of the rules (the new interpretation, which says only a simple majority is needed) will be confirmed. Step 10: Finally, after all the parliamentary shenanigans, the Senate will return to the question of Gorsuch's nomination. With the new precedent in place, a simple majority vote will approve Gorsuch's nominee and make him the 113th member of the U.S. Supreme Court. As Peter Suderman wrote in 2013 when then-Senate Majority Leader Harry Reid (D-Nevada) did this, the Senate is basically a very elaborate, expensive version of Calvinball. That's the fictional sport from the comic strip Calvin and Hobbes played and invented by the two title characters. There are a slew of complicated rules associated with the game, most of which are arbitrary and some of which are utterly nutty, but the most important thing to know about the game is that any of the rules can be changed at any time, usually by any player, except perhaps when there are rules prohibiting some players from making those changes. "It's a game, in other words, with an awful lot of complex and arcane rules that tend to evolve over time and are generally determined by the players themselves—rules that usually have to be obeyed, except when they don't," Suderman wrote. "This is not an exact description of how the Senate works, but it's close enough. And it's a reasonably useful context in which to understand the most recent squabble over the filibuster." That's still just as true today. One final note: it's possible that eight Democrats could decide against filibustering Gorsuch's nomination, even if they intend to vote against him. That would give Republican the margin they need to enact cloture and proceed to the final vote, even if the margin in support of Gorsuch falls below the 60-vote threshold. That's what happened in 1991 when Justice Clarence Thomas was confirmed by the Senate with a 52-48 vote, after Democrats withdrew their petition to force a cloture vote. A similar move with Gorsuch's nomination would preserve the filibuster for Supreme Court nominees, a tool both parties might someday wish they still had at their disposal. Poster Comment: A helpful nuclear countdown checkoff list for Thursday. Unless something changes in the next few hours, it appears that at least 41 Democrats, according to The Washington Post and other media outlets, will attempt to block the nomination of Neil Gorsuch on the Senate floor. That could potentially cause Republicans to trigger the so-called "nuclear option" and vote to kill the filibuster for Supreme Court nominees.
Earlier today, squishy Murkowski said she's ready for the nuclear option. And the negotiations between Coons and Collins have broken down as well.
I think the Dems blink at the last minute so they can have the same fight again if Trump nominates another justice to the Court.
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#1. To: All (#0)
It seems they did a straw poll of senators and Murkowski recommended Gorsuch to Trump's team. So she is ready for the nuclear option now. As for Collins, we have this from CNN: “If it’s necessary in order to get him confirmed, I may have to vote that way, but I certainly don’t want to,” Collins told reporters Monday night… Collins said Gorsuch deserves to be on the high court and that she’s “committed” to making sure he gets confirmed. I say the GOP has a solid 51 votes for the nuclear option and therefore the Dems will back down, just so they can have a re-run of the same fight again if Trump gets another Court vacancy to fill. And in the meantime, they can use it for their 2018 Senate races.
Since they know the outcome, it would seem they have more to lose than gain in forcing the R's hands. It's really a test to see how stupid they are. At the end of the day though, all this means is that a filbuster is rather meaningless for USSC nominees, and the de facto reality is that comes down to a majority vote, "nuclear option" or not. So what they call a "nuclear option" is really just a farce.
Whether they go nuclear or not, too much has now been said. So I think the judicial filibuster's days are numbered, even if they do back down tomorrow. Democrats shamefully abused it just in recent decades, now the GOP is going to pull the plug on it. It is only in the last 20 years that anyone even talked about filibustering a judge, let alone actually doing it.
33 Senators are up for re-election in '18. This must be causing major angst. Problems for many in states that voted for Trump.
Update: Cloture failed on a 55-45 vote, with 60 necessary to proceed to the floor vote for confirmation. To initiate the Reid Option, Mitch McConnell changed his vote to “no” in order to bring up the privileged motion to reconsider, the next step in the process.
Ticking off the steps in the nuclear countdown (HotAir): Update, 1:03: At this point, it looks like the 30-hour limit is safe. Republicans have moved directly into the debate. Looks like we’re done for this thread, but stay tuned for tomorrow’s vote. Thanks for reading! Update, 12:54: John Cornyn gets up to spike the football for a while, but stay tuned to see whether he or McConnell move to limit debate to eight hours. It doesn’t matter on Gorsuch, who will get confirmed by tomorrow evening either way, but it matters on hundreds of pending nominations from Donald Trump to other executive branch positions. Update, 12:50: The final cloture vote was 55-45. I missed the third Democratic crossover, but it was likely Michael Bennet, from whose state Gorsuch hails. Update, 12:45: And we’re at 51 for cloture and the vote. The Reid option has been fully implemented. Update, 12:41: Both Manchin and Donnelly voted for cloture on the new motion. Looks like Schumer had more trouble with his own caucus than McConnell did with his. Update 12:39: After this vote on cloture, watch to see whether McConnell decides to reduce the time for debate to eight hours from 30. Update, 12:34: Hatch announces a 48-52 vote on upholding the chair’s precedent. Now a new cloture vote has been called, and will pass on another party-line vote. Update, 12:32: The nuclear option has been detonated, pending the close of the vote: — Reuters Top News (@Reuters) April 6, 2017 Update, 12:26: Looking like a party-line win for McConnell so far. Update, 12:18: And now Orrin Hatch takes over as president (he’s the President Pro Tem) and calls the question for the Reid Option. Republicans will vote “no” to reject the ruling from the parliamentarian, which will change the precedent for Supreme Court nominations to a simple majority. Update, 12:17: The motion to adjourn failed on party lines, too, 52-48. That’s the last arrow in the parliamentary quiver for Schumer, other than maybe a few more parliamentary inquiries. Update, 12:12: If Schumer hoped to push a few Republicans into opposing McConnell’s play, he’s failing. So far, the GOP caucus has remained united through every vote in this process, but … we’re still waiting for the big one. Update, 12:02: McConnell raises the point of order. Schumer raises a few more parliamentary inquiries for his later talking points … again. And now Schumer wants to adjourn, which will eat up a few more minutes. ... (If I recall parliamentary procedure correctly, a motion to adjourn is the only one that takes precedence over McConnell’s appeal of the ruling from the chair.) Update, noon: The motion to postpone has failed on a straight party-line vote of 52-48. Next up: detonation. Update: Reconsideration passed 55-45, followed by a few “parliamentary inquiries” from Chuck Schumer for his later talking points. Schumer makes a motion to postpone the nomination until after the Easter recess, but he’ll need at least three Republicans to agree to that. So Gorsuch will be confirmed tomorrow night, just after 7pm. He'll probably be sworn in within the hour and report for work on Monday.
Sen. Susan Collins of Maine, who hasn’t said how she will vote on the nuclear option, argued that both parties “will rue the day” that led to the likely rule change.
#2. To: Tooconservative (#1)
I say the GOP has a solid 51 votes for the nuclear option and therefore the Dems will back down, just so they can have a re-run of the same fight again if Trump gets another Court vacancy to fill.
#3. To: Pinguinite (#2)
(Edited)
#4. To: Pinguinite (#2)
#5. To: All (#0)
Step 1: The Senate will vote to invoke "cloture," which ends debate on whatever issue is before the chamber. Under Rule XXII, the Senate requires 60 votes to approve cloture and end a debate.
#6. To: All (#0)
(Edited)
UPDATE: Enough Republicans support Senate rules change ending filibusters on Supreme Court nominees. https://t.co/BaZJ2TUpvC
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