To Go Nuclear?

By: Andrew Muchnick

With President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court inevitably comes the fight in the Senate over his confirmation. While the confirmation process over the last few decades has become increasingly more contentious, this upcoming cycle will almost surely prove to be the most heated.

Last year, when President Obama nominated Merrick Garland, the Chief Judge of the D.C. Circuit, GOP leadership stymied any movement on his confirmation, citing that it should be left for the American people to “weigh in” with the upcoming presidential election. While it is clear that the American people “weighed in” in 2012 by choosing President Obama to remain president until January 20, 2017, the Senate just as clearly had no constitutional obligation to provide their advice or consent. It was their prerogative to withhold advice and consent, either by voting down the nominee, or, as they did, by refusing to move on the nominee. While the leadership’s gamble paid off in that neither President Obama nor Hillary Clinton got to fill the vacancy, that gamble further bankrupted an already depleted American politics.

The 2016 election proved to be one of the most vicious in recent memory, and the fight over the Supreme Court certainly fueled the flame. While I am pleased with the President’s nomination of Judge Gorsuch, the embers of the battle over Judge Garland are still burning. As such, Senate Democrats are threatening to filibuster Gorsuch’s nomination, which of course has lead Republicans to threaten the “nuclear” option. The “nuclear” option refers to changing Senate rules to allow confirmation on a simple majority rather than the current 60 votes. The President has also recently urged Senate Majority Leader McConnell to use the nuclear option.

While it seems likely that Judge Gorsuch will ultimately become Justice Gorsuch, it will have come at a high cost. The American people have very little confidence in congress; the grandstanding, first by Republicans and now by Democrats, does not bode well for the future of our politics. I hope they do not have to use the nuclear option, as the 60-vote threshold ensures a solid portion of the Senate (and hopefully, by extension, the American people) believes in the nominee’s qualifications and fitness to serve. At this point, however, the Court continuing to hand down 4-4 opinions does not settle the major constitutional issues the country needs resolved, and it causes confusion at appeals and circuit courts.

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