'Nuclear option' could blow up Senate far beyond the Gorsuch vote

WASHINGTON — By using the "nuclear option" to confirm Neil Gorsuch to the Supreme Court, Senate leaders may blow up the chamber's unique bipartisan tradition in the process, destroying any hope for compromise on key issues facing the country, congressional experts warn.

It also could result in more ideologically extreme nominees for the high court and increase pressure on Senate leaders to do away with the filibuster rule entirely — a move that experts say would drastically weaken the Senate's strong minority rights that are intended to protect Americans against the unchecked power of the majority party.

"It's a sad day," said Jennifer Lawless, a government professor and director of the Women and Politics Institute at American University. "The Senate was supposed to be better than this."

Republican leaders are poised to move Thursday to change the Senate's filibuster rules so that Democrats can no longer block Gorsuch's confirmation. Senate Majority Leader Mitch McConnell, R-Ky., is expected to invoke the "nuclear option," a rules change that would allow a simple majority of senators to force an up-or-down vote on the nomination. Under current rules, 60 votes are required to advance a Supreme Court nomination to the Senate floor. Republicans hold 52 of the Senate's 100 seats.

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Democrats started the Senate down this road in 2013, when former majority leader Harry Reid, D-Nev., invoked the nuclear option for confirming lower court nominees and Cabinet nominees. Reid was frustrated that Republicans, who were in the minority at the time, blocked votes on former president Barack Obama's judicial nominees.

Veteran Sen. John McCain, R-Ariz., said Wednesday that he will vote for the nuclear option so that Gorsuch can be confirmed, but he said he fears for the future of both the court and the Senate, where he has served for more than 30 years.

"Now that we are entering into an era where a simple majority decides all judicial nominations, we will see more and more nominees from the extremes of both the left and the right," McCain said in a speech on the Senate floor. "I do not see how that will ensure a fair and impartial judiciary. In fact, I think the opposite will be true and Americans will no longer be confident of equal protection under the law."

McCain said he is "torn between protecting the traditions and practices of the Senate, and the importance of having a full complement of justices on the U.S. Supreme Court."

"I will vote to change the rules and allow Judge Gorsuch to be confirmed by a simple majority," he said. "I will do so with great reluctance. Not because I have any doubts that Judge Gorsuch will be an excellent justice, but because of the further damage, perhaps irreparable, it will do to the Senate."

The Senate's filibuster rules may seem arcane to many Americans, but they have forced senators to work together to find bipartisan consensus, Lawless said.

"Part of what has allowed the Senate to be more collegial and collaborative than the House was that it required a super-majority to get anything done," she said. "You had to build relationships because you never knew who you were going to need to call on for help. The nuclear option does away with that norm entirely ... The Senate is becoming a smaller version of the House," where the minority party has virtually no rights.

That's bad news because the laws that Congress passes are typically not as well-crafted or representative of the American people when they are written by just one party, said Eric Herzik, chairman of the political science department at the University of Nevada, Reno.

"Bipartisanship generally leads to better bills because you have a broader perspective on the problem," he said.

The nation's founders intended the Senate to temper what comes out of the highly partisan House, said Josh Huder, a senior fellow at the Government Affairs Institute at Georgetown University. Under House rules, the majority party essentially has all the power and can steamroll over the minority.

"The Senate has been the nation's biggest moderating influence," Huder said. "We're losing that. That's not good."

The House, for example, has been trying to develop a health care bill to replace Obamacare without any real input from Democrats. That couldn't happen in the Senate, where 60 votes are still needed to advance most major legislation. House Speaker Paul Ryan, R-Wis., told his GOP colleagues that they couldn't put everything they wanted into the bill because it would never pass the Senate if they did.

"We need compromise for our system of government to work," Huder said.

So far, there has been no serious move to apply the "nuclear option" when it comes to passing bills, but political scientists worry that could come next.

"That's the big question, and we just don't know," Lawless said. "Assuming that party leaders are strategic politicians, I can't imagine that they would do that to themselves. But a lot of things I couldn't imagine happening over the past year have happened."

Herzik said he believes most senators would hesitate to make such a drastic change because those in the majority realize that they will be in the minority again someday.

"I would hope they wouldn't go that far," he said. "But the farther you go down this road, the easier it gets. You do it once, you do it twice ... it's not so hard the next time."

At least for now, Huder said, senators don't seem ready to go that far.

"It's one thing to do this on nominees, it's another thing entirely to lose all of your legislative power," he said. "You're asking a senator to have less power, less prestige. You're taking away what makes being a senator cool. I don't think anybody in the majority or the minority wants that to happen."

Still, expanding the nuclear option to include Supreme Court nominees will have fallout, even if the Senate stops there, said Sen. Richard Blumenthal, D-Conn.

"And this fallout will be dangerously, and perhaps disastrously, radioactive for the Senate in years to come," he said.

USA TODAY


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