The ‘Nuclear Option’ Won’t Dramatically Change the Senate

A rules change to confirm Supreme Court nominations would mark just the latest, incremental step toward intensifying partisanship in Congress.

Senate Majority Leader Mitch McConnell at the U.S. Capitol in Washington (Eric Thayer / Reuters)

The Senate is headed toward a showdown when President Trump’s Supreme Court nominee comes up for a final confirmation vote.

Majority Leader Mitch McConnell is expected to invoke the so-called “nuclear option,” changing Senate rules so that Republicans can approve the nomination of Neil Gorsuch by a simple majority vote. The looming clash is the latest evidence that Congress has become increasingly divided along party lines, and threatens to pave the way for presidents to nominate ever-more partisan judges to the Supreme Court. Even so, implementing the tactic won’t dramatically alter  the way the Senate operates on its own.

The Senate already requires only a simple majority to confirm most presidential appointments. That has been the case since 2013 when Democrats controlled the chamber and then-Majority Leader Harry Reid triggered the nuclear option. At the time, the rules change spared Supreme Court nominations, an exception that McConnell is now poised to do away with it. But ending that exception now still only represents an incremental change in the way the upper chamber has operated in recent years.

“The idea that this will forever change the Senate is nonsense,” said Josh Chafetz, a law professor at Cornell University, citing the simple majority threshold for other judges and presidential appointees in place for the past four years.

A key distinction between the Senate and the House of Representatives is that any senator can assert themselves and threaten to prolong debate by initiating a filibuster, which requires 60 votes to overcome. That ensures that the minority party has more power, and is one of the reasons why, at least in theory, the Senate is supposed to function as a more deliberative body.

CNN’s Chris Cillizza warns that if the Senate invokes the nuclear option on Supreme Court nominees, “the idea that the Senate is fundamentally different in its operations than the House” will be “gone, or at least badly damaged.” Instead, Cillizza argues the Senate “will be a place where majority makes might, and where the idea of reaching across the aisle is essentially a non-starter.”

But ending the filibuster for high court nominations won’t do away with all, or even the most significant, guardrails that foster deliberation and ensure that minority voices have a say in the Senate. As Vox notes: “If the nuclear option is used this week, the change would only apply to Supreme Court nominations. It will not be used to eliminate the filibuster for legislation. No one is seriously discussing that at this point.”

“Concerns that a nuclear option on the Gorsuch nomination will make the Senate become like the House, in which the majority rules, are really overblown,” said Gregory Koger, a political science professor at the University of Miami and author of Filibustering: A Political History of Obstruction in the House and Senate. “As long as the ability to filibuster legislation is maintained, that’s the important thing for the soul of the Senate as a place where ideas are thought out, moderated, and debated.”

Senate Republicans have a number of incentives to preserve the filibuster for debating policy and considering legislation. To start, Republicans will one day be in the minority again, and won’t want to eliminate a tactic that can be used by the minority party to stall, or encourage amendments to, legislation. Beyond that, senators who feel squeamish about any aspects of Trump’s legislative agenda likely won’t want the responsibility that would come with a newly-empowered majority in the Senate. If the filibuster didn’t exist for legislation, Republicans might be able to more easily advance legislation along party lines, but that would also make it more likely that they alone would shoulder the blame for any fallout.

The Supreme Court nomination may also seem like a higher stake scenario to McConnell, who took the unprecedented step of supporting a blockade on consideration of President Obama’s pick for the same seat, Merrick Garland, last year in the hopes of keeping it open for a Republican president to fill. The relative infrequency with which Supreme Court nominations come up for consideration in the Senate compared to legislation may make the majority party hesitate to implement the nuclear option beyond the high court nomination process.

Even in light of all that, invoking the nuclear option to end the filibuster for Supreme Court nominations remains a significant, and historic, decision. It would mark both a change in Senate rules, and an escalation of partisanship. It’s difficult to fully predict the potential consequences of such a move, but confrontational tactics by one political party are likely to be met with retaliation by the other. The decision could also have a profound impact on the Court itself, especially since it creates a powerful incentive for presidents to nominate more partisan judges when their party controls the Senate.

“It’s an important indicator of how partisan we’ve gotten, even in the Senate,” said Burdett Loomis, a political science professor at the University of Kansas. “But the Senate has already been highly polarized for a while now. This is more like one extra step on a ladder we’ve been climbing for a while now, than some kind of nuclear bomb that will fundamentally change the Senate.”