Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Thursday, May 30, 2024 | Back issues
Courthouse News Service Courthouse News Service

Ready for Gorsuch Filibuster, GOP Threatens Nuclear Option

Setting the stage for the first Supreme Court nominee confirmed via “nuclear option,” the Senate Judiciary Committee advanced Judge Neil Gorsuch to the full Senate floor by a party-line vote Monday.

WASHINGTON (CN) - Setting the stage for the first Supreme Court nominee confirmed via “nuclear option,” the Senate Judiciary Committee advanced Judge Neil Gorsuch to the full Senate floor by a party-line vote Monday.

The nuclear option refers to the promise that Senate Republicans will remove the ability to filibuster Supreme Court nominations if Democrats make good on their threat to hold up Gorsuch's nomination.

As the Judiciary Committee advanced Gorsuch 11-9 to the full Senate on Monday, the threat of such a move spilled into an ensuing press conference.

“This is going to be very bad,” Sen. Lindsey Graham, R-S.C., said. “Let me tell you what’s going to happen: The judges are going to become more ideological because you don’t have to reach across the aisle to get one vote any longer.”

During the hearing, Graham cautioned that “the damage done to the Senate is going to be real.”

Sen. John Kennedy, R-La., meanwhile defended the threat. “There has never been a Supreme Court nominee by either a Democratic president or a Republican president who has been filibustered to death for partisan reasons in the history of the United States Senate, or in the United States,” Kennedy told reporters.

Congress should do its part to differentiate U.S. Supreme Court nominees from bills. 

Gorsuch needs 60 votes, or a super majority to fill the seat on the high court left vacant after the February 2016 death of Justice Antonin Scalia. Invoking the nuclear option to break a Democratic filibuster would change the Senate rules so that Supreme Court nominees need only a 51-vote simple majority.

Scalia’s seat has remained vacant this long because Senate Majority Leader Mitch McConnell blocked any consideration of the prior administration’s nominee, Judge Merrick Garland.

Several members of the gallery gasped after Graham chided Democrats for picking at the scab of Garland’s nomination. "When you complain about Garland,” he said, “it's the arsonist complaining about the fire."

Echoing the justification Republicans had used last year, Committee Chairman Chuck Grassley told reporters at the press conference that Garland’s treatment was acceptable under the so-called Biden rule.

Republicans have argued that the former vice president created precedent for blocking Supreme Court nominees during an election year, but the then-Delaware senator had only been speaking hypothetically.

"If there hadn't been a Biden rule," said Grassley, R-Iowa, "Garland would be on the Supreme Court right now."

Sen. Diane Feinstein defended the Democratic effort to filibuster the Gorsuch vote. "In my view, this is not a routine nomination," she said.

Calling the block of Garland "unprecedented," Feinstein noted that the Senate Judiciary Committee had confirmed 19 justices who were nominated in an election year. Three of them were confirmed after elections had taken place, she said.

"There is simply no reason that the nomination of Judge Garland could not proceed," Feinstein added.

Republicans claim that Democrats also paved the way for them to invoke the nuclear option on Gorsuch’s nomination since it was then-Senate Majority Leader Harry Reid who changed the rules in 2013 to help confirm three of President Obama's appellate nominations to the D.C. Circuit.

Grassley told reporters that no judge was ever filibustered until the George W. Bush administration.

Democrats, concerned that Bush would pack the courts with ideological appointees, succeed for 1 1/2 years in blocking his appellate nominees. They managed to filibuster 10 of Bush's judicial nominees when Republicans retook the Senate majority after the 2002 midterm elections.

"This is in many ways, after a long, painful detour, a return to the status quo back before the George W. Bush presidency," Grassley said.

Orrin Hatch, R-Utah, accused Democrats of politicizing the court.

“It’s pathetic that they’re so stupid that they picked somebody of his quality and ability,” he said of Democrats obstructing Gorsuch. “And it all comes down to the fact that they’re still gnashing their teeth over the fact that they lost the presidency this last year. And this one of the reasons they lost.”

Categories / Courts, Government, Politics

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.