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You're Hired: Tracking the Trump Administration Transition - April 5, 2017
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This is the April 5, 2017, edition of an email sent from November 2016 to September 2017 that covered Donald Trump's presidential transition, cabinet appointees, and the different policy positions of those individuals who may have had an effect on the new administration. Previous editions of "You're Hired" can be found here.
According to most accounts, the Senate confirmation process for President Trump’s U.S. Supreme Court nominee, Neil Gorsuch, could end on Friday. In this edition, we look into the Democratic Party’s promise to filibuster Gorsuch’s nomination and how the Senate may move forward.
What is a filibuster?
A filibuster is an attempt to block or delay Senate action on a bill or other matter by lengthy debate, introducing multiple procedural motions, or any other obstructive action. The popular impression involves a senator (named Smith?) speaking for hours on end to avoid a vote. While this is possible, and has happened plenty in the past, a filibuster does not necessarily happen this way. The most important thing to note is that having fewer than 60 votes to end debate means a filibuster is possible, which could mean a delayed vote.
What do Senate Democrats mean when they say they are going to filibuster Gorsuch’s nomination?
Democrats are signaling that they could debate indefinitely because they have enough votes to keep from invoking cloture (ending debate on the floor). Sen. Jeff Merkley (D-Ore.) began speaking last night in opposition to the nomination, and ended this morning with an appeal to vote against Gorsuch.
Senate Majority Leader Mitch McConnell (R-Ky.) filed a motion to end debate before anyone even began debating, and that motion―which was submitted Tuesday―will have ripened and will be ready for a vote on Thursday. According to the Congressional Research Center, a cloture vote takes precedence over the proceedings of the Senate at the time whether or not a senator is still speaking on the floor.
Below, we outline what might happen next, if the motion to end debate receives fewer than 60 votes.
What options are on the table for Republicans?
Barring a change in the nominee for the Supreme Court vacancy, the options moving forward are few.
One choice, which is increasingly unlikely, is to work out a deal between the Republican majority and the Democratic minority to compromise and avoid a rules change. This happened in 2005, concerning filibusters of a number of appellate judge appointments by President George W. Bush (R), and in 2006 with Samuel Alito, Bush’s nominee to the U.S. Supreme Court.
Sen. John McCain (R-Ariz.), who worked to avoid changing the rules then, spoke yesterday on his attempts to work with senators in both parties to avoid changing the rules. He said, “I’ve tried. I promise you, I’ve had numerous conversations, meetings. Believe me, I tried. I really tried. And we tried at least twice in the past and succeeded. The atmosphere is different nowadays.” Sen. Lindsey Graham (R-S.C.), who was also part of negotiations to avoid the nuclear option during the Bush administration, reiterated the point, saying, “What deal is there? There is no deal to be had.”
The most likely scenario is that the Senate votes to change the interpretation of rules for confirming Supreme Court justices, so that confirmation would require 51 votes rather than 60. This scenario, dubbed the nuclear option, was enacted for other judicial appointments in 2013 by then-Majority Leader Harry Reid (D-Nev.) but was not put in place for Supreme Court nominations or for legislation.
- A change to the interpretation of Senate rules for confirming Supreme Court nominees is called the nuclear option because it is seen as a drastic, last-resort measure for confirmation. Lowering the threshold from 60 to 51 means that Gorsuch and future nominees for the court could be confirmed with the support of only one party.
- One concern is that, without the need to gain bipartisan support, future nominees would be more ideologically polarizing.
- For his part, President Trump has stated his support for changing the Senate rules. On February 1, Trump said, “If we end up with that gridlock, I would say, if you can, Mitch, go nuclear.”
Here’s how a rule change and Gorsuch confirmation would happen:
- Tomorrow (Thursday, April 6), a vote to end debate is scheduled to happen, whether a Democrat is filibustering or not. If the 60-vote threshold is not met, the next steps would involve a complex series of votes to change Senate precedent on voting for Supreme Court nominees.
- In order to change the precedent, the Senate would need 51 votes in favor.
- If the rule interpretation for Supreme Court nominations is changed, a new vote to end debate on Gorsuch’s nomination would follow.
- As of this morning, Ballotpedia counts 55 senators who have expressed that they would vote in favor of Gorsuch. This count includes all Republicans and three Democrats—Joe Manchin (W.Va.), Heidi Heitkamp (N.D.), and Joe Donnelly (Ind.).
- If debate on Gorsuch is ended following the precedent change, there will be 30 more hours of floor debate allowed until a confirmation vote can happen. With 51 or more votes in favor, the Senate would then have approved Gorsuch to fill the vacancy on the court.
The bottom line
Expect the interpretation of Senate rules to change tomorrow (April 6, 2017) as they concern the process for confirming justices to the U.S. Supreme Court. Then, expect Neil Gorsuch to be confirmed by a simple majority on Friday (April 7) before the Senate takes its two-week recess.
We’d also anticipate this issue resurfacing at some point in the next four years. In January 2016, Fact Check by Ballotpedia did a fact check concerning the average retirement age of Supreme Court justices. We found: “Though the justices themselves have offered few clues in this regard [about their intentions to retire], most experts and political commentators agree that at least one retirement in the next four years is highly likely (see examples here, here and here).”
See also
- You're Hired: Tracking the Trump Administration Transition
- Donald Trump presidential transition team
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