GOING NUCLEAR

What’s the ‘Nuclear Option’ in Neil Gorsuch’s Supreme Court Senate Filibuster?

Mitch McConnell keeps threatening a “nuclear option” for the Senate. Here’s what that really means.

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With Democrats threatening to filibuster Neil Gorsuch’s Supreme Court confirmation in the Senate, there’s a lot of buzz about Senate Majority Leader Mitch McConnell potentially pulling a “nuclear option” on the Senate floor this week. But what is the “nuclear option” in a Senate filibuster?

Normally, when the Senate confirms a Supreme Court nominee, a supermajority (60 votes) is required for the vote to pass, aka Senate Rule XXII. However, there’s a loophole: The Senate Majority Leader, in this case McConnell, can enact an option called the “constitutional option,” better known as the “nuclear option.”

The “constitutional option” allows a simple majority (51 votes) for a vote that would usually require a supermajority (60 votes). This is more commonly known as the “nuclear option” because the move will likely anger the opposing party and senators. This option only temporarily “amends” Senate Rule XXII, but it indirectly sets an entirely new precedent.

This only happens when the Senate Majority leader is determined to make something happen—i.e., McConnell wanting to confirm Judge Neil Gorsuch against the wishes of Democratic senators. The “nuclear option” has only been successfully used four times–in 1977, 1979, 1986 and 2013.

2013 is the biggest “nuclear” moment. Under the leadership of Senator Harry Reid, senators were upset that President Barack Obama’s appellate court nominees were being blocked. Democrats then invoked the “nuclear option” and pushed through a new rule lowering the votes required to confirm nominees. As a result, a new Senate precedent was created thus allowing a simple majority for most executive and judicial branch nominees.

One can imagine how upset Republicans were over this. McConnell even went as far as to say, “I say to my friends on the other side of the aisle, you will regret this, and you may regret it a lot sooner than you think.” This 2013 vote will most likely be used as McConnell’s precedent–and as an “I told you so”–but it clearly states: “The Senate established a precedent reinterpreting the provisions of Rule XXII to require only a simple majority of those voting, rather than three-fifths of the full Senate, to invoke cloture on all presidential nominations except those to the U.S. Supreme Court.”