As the Senate is beginning floor votes on the nomination of Neil Gorsuch to the Supreme Court, more and more Republican senators are suggesting that if Gorsuch fails to clear the 60-vote threshold, they will vote to change Senate rules and invoke the so-called “nuclear option,” meaning that Gorsuch and all future Supreme Court nominees could be confirmed by a simple majority on a strict party-line vote. This includes some Republican senators—like Senators John McCain, Lindsey Graham, and Susan Collins—who have previously stood up against such efforts and, as I recall from my experience working for the House Judiciary Committee in the 110th Congress, who have been willing to stand up against the far Right and a president of their own party. These and other Republican senators must realize that voting for a “nuclear” change in Senate rules would clearly do the bidding of President Trump and the far right, and seriously harm the Senate, the Supreme Court, and the entire country.
As early as February, Trump encouraged Senate Republicans to “go nuclear” if the Gorsuch nomination did not clear the 60-vote threshold met by every successful Supreme Court nominee of our last three presidents. Just this week, Trump’s press secretary reminded Senate Republicans that they have his “full support and backing” to “go nuclear.” The result would fit squarely into helping advance Trump’s agenda. Not only could he nominate future justices as ideologically extreme as he pleases, but he could also similarly push Senate Republicans to “go nuclear” and eliminate the 60-vote threshold for highly controversial legislation on taxes and spending, eliminating the Affordable Care Act, restricting civil and reproductive rights, and other issues, as many have already speculated and feared despite Majority Leader McConnell’s recent statements. Although the result is likely to be extreme disruption in the Senate, Trump’s ability to push through his proposals could significantly improve.
Republican senators must realize that voting for a “nuclear” change in Senate rules would... seriously harm the... entire country.
The far right is also strongly encouraging the use of the nuclear option on the Gorsuch nomination, and is already celebrating the possible consequences. One far-right group proclaims that if Senate Republicans take that step and confirm Gorsuch, the Court will be “only one vote shy of reversing” what they call the “horrible” decision that ensured marriage equality in the Obergefell case. A far-right lawyer and writer recently exulted in one tweet about “triggering” the nuclear option and “clearing path for 1-3 more Scalias” on the Supreme Court, and proclaimed in another that the result could “tilt SCOTUS hard-right for next 50 years.”
Many Senate Republicans undoubtedly agree. But in the past, Republican senators like Collins, Graham, and McCain were willing to stand up to a Republican president and the far right. In the 110th Congress in 2007-08, when I had the honor of working for House Judiciary Chair John Conyers, Democrats had just regained control of Congress and had a slim majority during the George W. Bush administration. We knew that on many issues, ranging from the improper firing of U.S. Attorneys to the continued far-right and administration efforts on reproductive freedom or the torture of detainees, the support of differing Senate and House Republicans was extremely important. Senator McCain was well known for his willingness to stand up to the Bush administration on torture and the interrogation of detainees at Guantanamo and elsewhere. Senators Collins and Murkowski were crucial voices on women’s rights. Do Collins and Murkowski really want up to three more Scalias on the Supreme Court, which could very well mean the end of Roe v. Wade and other decisions protecting women’s rights?
It is clear that these Republican senators, as well as others who have sought to work across the aisle like Corker, Alexander, Heller, and Flake, have a choice. If only three refuse to vote for the nuclear option, it will fail and the Gorsuch nomination will not go forward. In the first few months of the Trump administration, when the initial nomination of a secretary of labor and the appointment of the national security advisor failed, Trump put forth a different nominee who, while conservative, was clearly less objectionable. The same could happen with respect to the Supreme Court. That happened years ago when the Senate rejected the Supreme Court nomination of Robert Bork, and President Reagan instead nominated Anthony Kennedy. More recently, President Clinton decided not to nominate his first choice for the Supreme Court, Bruce Babbitt, based on the advice of Senate Judiciary Committee Ranking Republican Orrin Hatch, and instead selected a nominee who Hatch had suggested.
Will just a few Republican senators continue their tradition of independence and bipartisanship and decline to vote for the nuclear option? Or will just about every Republican senator show obsequious deference to Majority Leader McConnell, the far right, and President Trump? The consequences will be enormous for all of us.
Elliot Mincberg is a senior fellow at People For the American Way and served as Chief Counsel for Oversight and Investigations for the House Judiciary Committee in the 110th Congress.