Home Economy Senate Is Running Out of Compromises to Avoid ‘Nuclear Option’ in Gorsuch Vote

Senate Is Running Out of Compromises to Avoid ‘Nuclear Option’ in Gorsuch Vote

12 min read

By Kristina Peterson

WASHINGTON — A bipartisan group of 14 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 him.

"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.

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 that it’s 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 party’s ideological extremes when his party controls the Senate.

"There’s a variety of reasons" for the shift, Mr. McCain said, "none of it good."

"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," said Sen. Brian Schatz (D., Hawaii).

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, only GOP Sens. Susan Collins of Maine and Lindsey Graham of South Carolina still serve in the Senate.

"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, when in the Senate minority during President George W. Bush’s presidency, 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. "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 then-President Barack Obama’s judicial and executive nominees 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 just a simple majority.

Then last year, Republicans, back in control of the Senate, refused to hold a hearing for Merrick Garland , Mr. Obama’s nominee to the Supreme Court after Justice Antonin Scalia died in February. That stoked anger among liberal voters, who pressed Democratic senators this year to oppose Mr. Gorsuch. The pressure from Democratic voters also was driven by resistance to Mr. Trump’s inflammatory comments and early actions in office.

"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?" said Sen. Schatz of Hawaii.

However, 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 their alteration later this week. The consequences of the 2013 rules change became evident this year, when Mr. Trump’s 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 Trump’s nominees have drawn more than 40 "no" votes, with four drawing 47 and one drawing 50 votes in opposition — prompting the first ever tiebreaking vote by a vice president on a cabinet nomination.

And Senate Minority Leader Mitch McConnell (R., Ky.) has found ways to skirt the current rules requiring most bills to secure 60 votes to clear procedure procedural hurdles.

Before the bill collapsed in the House, Republicans had hoped to advance their health-care overhaul 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 contributed to this article.

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