But that threshold can be eliminated by invoking the nuclear option, under which the Senate rewrites its own standing rules in a simple-majority vote. The procedural tactic earned its colloquial name from its sweeping power: Senate Democrats under former Majority Leader Harry Reid invoked it in 2013 to eliminate the 60-vote threshold for virtually all presidential appointments, citing the Republican minority’s unprecedented efforts to block Obama administration nominees. Democrats left the filibuster intact for Supreme Court nominees, however, leading to the current standoff.
Senate Republican leaders, including Majority Leader Mitch McConnell, have already signaled they would go nuclear to place Gorsuch on the Court. If confirmed, the 49-year-old federal appellate judge from Colorado would fill the record 14-month vacancy left by the death of Justice Antonin Scalia in February 2016. His unexpected death gave Barack Obama his third opportunity to nominate a justice to the Supreme Court. In March, he nominated Merrick Garland, the well-respected chief judge of the D.C. Circuit Court of Appeals and a relative moderate among the likely Democratic choices for the Court.
Within an hour of Scalia’s death, however, McConnell vowed to not confirm any of Obama’s nominees until after the election later that year. While McConnell cited the then-upcoming presidential contest as a reason not to confirm any Supreme Court nominee, Democrats attacked the unprecedented refusal as nakedly partisan. Confirming any Obama nominee would’ve given the Court’s liberal wing its first five-justice majority since the 1960s—a major shift in the high court’s ideological balance after almost a half-century of conservative dominance. President Trump’s victory in November foreclosed that shift for the immediate future, vindicating McConnell’s blockade.
Contentious battles over Supreme Court nominees have been uncommon historically, but not unheard of. Lyndon Johnson nominated Justice Abe Fortas to replace Earl Warren as the Court’s chief justice in 1968, for example, only to see the nomination flounder amid a bipartisan filibuster over ethics concerns and the Warren Court’s ideological leanings. But where such clashes were once rare, partisan confirmation battles have increasingly become more typical over the past three decades.
At a glance, the recent record might suggest otherwise. Senators approved Scalia, Anthony Kennedy, and Ruth Bader Ginsburg by unanimous or near-unanimous margins between 1986 and 1993 despite their broad ideological differences. But there were acrimonious fights, too. The Democratic-led Senate rejected Ronald Reagan nominee Robert Bork, a prominent legal thinker on the right, in a heated showdown over his philosophical stances in 1987—a defeat conservatives still invoke today. Clarence Thomas, the Court’s second black justice, described his confirmation process in 1991 as a “high-tech lynching” after sexual-harassment allegations nearly derailed his nomination.