Gorsuch and the ghost of Harry Reid
What goes around comes around is one of life’s undeniable truisms and never more than in the politics of Washington, D.C.
Last week was Cherry Blossom week in D.C. This week it’s Neil Gorsuch week. Republicans must now decide whether to use the “nuclear option,” a parliamentary procedure that allows the U.S. Senate to override a rule or precedent by a simple majority of 51 votes, instead of by a supermajority of 60 votes, as a tool for confirming President Trump’s nominee to the U.S. Supreme Court.
For those whose primary diet is not politics, a little history will help explain the pedigree of the nuclear option.
The constitutional option has been around in one form or another for more than a century. Writing on the website Think Progress, Ian Millhiser references a Federalist Society article in 2004: “The basic mechanism was devised by Republicans in 1890 to defeat a Democratic filibuster of a bill permitting military intervention in Southern states that prevented African-Americans from voting.”
Under the 1890 plan, notes Millhiser, “Sen. Nelson Aldrich (R-RI) proposed introducing a motion asserting that ‘when any bill, resolution, or other question shall have been under consideration for a considerable time, it shall be in order for any senator to demand that debate thereon be closed.'”
Aldrich then envisioned, notes Millhiser, “a series of steps where the presiding officer of the Senate would reject the process proposed by his motion, and a simple majority of the Senate would reverse the presiding officer’s decision.” The plan was never activated because “Democrats caved and allowed a vote on the bill out of concerns that Aldrich would succeed.”
That is the choice for Democrats this week with the Gorsuch nomination. Should enough of them vote to get to the 60-vote majority currently required for a Supreme Court nominee, or should they do what their liberal base is demanding and vote “no,” prompting Senate Majority Leader Mitch McConnell (R-KY), to change Senate rules to allow Gorsuch to be confirmed by a simple majority?
Democrats don’t have a credible leg to stand on in opposing a change in Senate rules. That’s because their former Majority Leader, Harry Reid (D-NV), changed the rules to confirm federal judges nominated by President Obama by a simple majority over Republican objections.
“Power” is defined as the “ability to do or act” and having the “capability of doing or accomplishing something.” As long as Republicans have the majority, they should consider using their power. They have the numbers so they have the ability. The question is, are they capable enough to confirm Gorsuch with little support from Democrats?
If the nuclear option is necessary to confirm Judge Gorsuch, Republican senators should use it. And they should keep it for all federal judges, just as Democrats did with President Obama’s nominees. This is what Democrats fear most, because with a clear conservative majority on the Supreme Court and more conservatives on lower courts they could no longer expect judges, rather than legislators, to advance their agenda and they would have to be accountable to voters.
Sounds to me like a good option.
Cal Thomas is a nationally syndicated columnist.