Senate Is Running Out of Compromises to Avoid ‘Nuclear Option’ in Gorsuch Vote
Expected showdown over changing a Senate rule was sparked by years of partisan feuds
Sen. John McCain said he reluctantly would join the GOP effort to alter Senate rules for confirming Supreme Court nominees. PHOTO: ERIC THAYER/REUTERS
WASHINGTON—A bipartisan group of 14 U.S. senators in 2005 ended a bruising fight
over federal judgeships with a compromise agreement that stopped GOP leaders from
changing the chamber’s rules for confirming Supreme Court nominees.
Twelve years later, no such group has materialized to pull the Senate back from the
brink in the battle over Judge Neil Gorsuch, President Donald Trump’s nominee to
the Supreme Court.
The country’s increasing political polarization in the intervening years has hardened
the stances of both Senate Democrats, who said this week they had enough votes to
mount a filibuster to block a vote on Judge Gorsuch under the current, decades-old
rules, and Republicans, who are expected on Thursday to permanently change the
chamber’s rules to confirm the GOP president’s pick.
“The whole environment has dramatically changed,” said Sen. John McCain
(R., Ariz.), a member of the so-called Gang of 14 that averted a rules change in 2005.
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This week, Mr. McCain said he
reluctantly would join most, if
not all, Republicans in voting to
alter the Senate’s rules so Supreme
Court nominees could be confirmed
with a simple majority, rather than
the 60 votes currently needed.
One party moving unilaterally to
change the rules is so contentious,
it is referred to as “the nuclear option.” It would leave the minority party without any
ability to block nominees and enable the president to cater to his or her party’s
ideological extremes if the Senate is controlled by the same party.
“There’s a variety of reasons” for the shift, Mr. McCain said, “none of it good.”
Sen. Brian Schatz (D., Hawaii) said: “There’s no doubt we are moving into dangerous
territory and we’re putting ourselves in a position where if you’re ever in the minority
party, nobody has to talk to you.”
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Tuesday evening, Sen. Jeff Merkley
and spoke in protest of Judge
Gorsuch’s nomination for more
than 15 hours until Wednesday
morning. During the night,
Mr. Merkley railed against a
rules change. The effort, though
largely symbolic, is the closest
approximation to a talking
filibuster that can be found in the
modern Senate.
Congressional experts said this week’s expected Senate showdown reflects a
widening gulf on Capitol Hill between the prevailing Republican and Democratic
ideologies, as well as fewer centrist lawmakers on either side of the aisle.
Before the 2010 election, there were 54 Blue Dog Democrats, a group of fiscally
conservative House Democrats. This year, there are 18, including seven lawmakers
who joined Congress this year.
Only three members of the Gang of 14 who took action in 2005 are still in Congress,
after several lost re-election bids. In addition to Mr. McCain, they are: Sens. Susan
Collins of Maine and Lindsey Graham of South Carolina, both Republicans.
“The country is more divided, and it becomes very difficult to be someone who
brokers a compromise,” Ms. Collins said on Tuesday. “People on the far left and
the far right are energized and putting a lot of pressure on members.”
Republicans and Democrats are now further apart ideologically on most issues.
The parties used to have strong internal, regional divisions, particularly between
Northern and Southern Democrats, said Keith Poole, a political-science professor
at the University of Georgia. The party’s composition began to change after the
passage of civil-rights legislation in the 1960s, as Southern voters abandoned
conservative Democrats for Republicans.
Mr. Poole, whose research has studied every congressional roll-call vote since 1789,
said lawmakers’ votes now fall largely along only one spectrum ranging from
liberal to conservative, rather than also dividing along regional lines, making
bipartisan compromises harder to achieve.
“That’s what’s so distinctive and dangerous about the modern era,” Mr. Poole said.
“This is the first time when the two parties do not have any regional divisions within
them.”
The rise in partisanship has fed an escalating feud between the parties over how to
use the Senate’s procedural tools to keep the other side in check.
Democrats, who were in the Senate minority when then-President George W. Bush,
a Republican, was in office, sought to block a set of Mr. Bush’s judicial nominees
before the Gang of 14 agreement defused the tension.
“The parliamentary arms race between the parties has just continued since 2005,” said
Sarah Binder, a senior fellow specializing in Congress at the Brookings Institution, a
Washington-based think tank. “Minorities exploit the rules and majorities find new
ways to restrict those new avenues.”
Later, when Republicans were in the minority, their opposition to some of the
judicial and executive nominees advanced by then-President Barack Obama, a
Democrat, helped push Democrats, led by former Sen. Harry Reid of Nevada, to
change the chamber’s rules in 2013.
That change enabled the Senate to approve lower-court and executive nominees
with a simple majority.
Then last year, Republicans, back in control of the Senate, declined to hold a
hearing for Merrick Garland , Mr. Obama’s nominee to the Supreme Court after
Justice Antonin Scalia died. That stoked anger among liberal voters, who pressed
Democratic senators this year to oppose Judge Gorsuch. The pressure from
Democratic voters also was driven by resistance to Mr. Trump’s early actions in
office, most notably on immigration.
Mr. Schatz of Hawaii said, “This is like a troubled relationship where everybody
has a grievance and everybody has a little bit of a reason to be angry, but the
question becomes, what do we do next?”
Still, lawmakers from both parties say there is no appetite now for changing the
60-vote threshold for procedural hurdles on most legislation.
GOP lawmakers have said Mr. Reid’s decision to change the rules in 2013 paved
the road for the expected rules change later this week.
The consequences of the 2013 rules change became evident this year, when
Mr. Trump’s cabinet nominees, many of whom were contentious, cleared the
Senate often along largely partisan lines.
None of Mr. Obama’s cabinet nominees in his first term garnered more than 31
no votes.
By contrast, so far, six of Mr. Trump’s nominees have drawn more than 40 no votes,
with four drawing 47 and one drawing 50—prompting the first ever tiebreaking vote
by a vice president on a cabinet nomination.
Senate Majority Leader Mitch McConnell (R., Ky.) has found ways to skirt the
current rules requiring most bills to secure 60 votes to clear procedural hurdles.
Before the health-care bill collapsed in the House, Republicans had hoped to advance
the legislation without needing any Democratic votes in the Senate, by taking
advantage of a procedural shortcut tied to the budget. Meanwhile, both chambers
have been passing measures under the Congressional Review Act permitting them
to roll back with a simple majority some rules passed by Mr. Obama’s administration.
—Natalie Andrews and Byron Tau contributed to this article.
Corrections & Amplifications
Mitch McConnell (R., Ky.) is the Senate majority leader. An earlier version of this
Mitch McConnell (R., Ky.) is the Senate majority leader. An earlier version of this
article incorrectly stated that he is the minority leader. (April 5, 2017)
