How the GOP Can Confirm Gorsuch Without Going Nuclear

With Democratic opposition to Supreme Court nominee Neil Gorsuch stiffening, Republicans increasingly are looking to the so-called “nuclear option” to put him on the bench.

That refers to changing the Senate filibuster rules to require only a simple majority to cut off debate, instead of 60 votes.

“We’re going to make you exhaust yourselves in the fact of inevitable defeat.”

But some experts on Senate procedure say there is another way that would allow the majority to rule without further eroding the 200-year-old filibuster rule. They point to Rule 19, or the “two-speech rule,” which limits filibustering senators to two speeches each during the same legislative day.

Rachel Bovard, director of policy services at the conservative Heritage Foundation, said the approach would force Senate Democrats into the demoralizing position of staging a talkathon they know they cannot win.

“We’re going to make you exhaust yourselves in the face of inevitable defeat,” she said, putting herself in the shoes of the Republican majority. After a few days, she added, Democratic senators may ask, “is this really worth it? We’re going to lose, anyway.”

Bovard, who previously served as policy director for a caucus of conservative senators, explained that a legislative day can stretch days or weeks beyond a calendar day — the time between when debate begins and the Senate adjourns. A Democratic senator could talk for as long as stamina allows before passing to a colleague. But once the microphone came back to the senator, he would speak only one more time.

Eventually, Democrats would run out of speakers, and Republicans could move to a vote.

There is some historical precedent for the tactic. Mike Mansfield, who was the majority leader during debate over the 1964 Civil Rights Act, used the rule to help break a filibuster by Southern Democrats.

“Senate Rule 19 was pushed because it limited to two the number of speeches a senator can make on a subject in the same legislative day,” historian Nina Moore wrote in her 2000 book, “Governing Race: Policy, Process, and the Politics of Race.”

Mansfield kept the Senate in session for 81 calendar days. In the end, the debate ended when 71 senators voted to cut off debate.

That exceeded the two-thirds threshold that existed at the time.

So far, Republican leaders in the Senate have shown little interest in using the parliamentary end-run around the filibuster. A spokesman for Senate Majority Leader Mitch McConnell (R-Ky.) did not return a phone call and email seeking comment.

McConnell has been reticent to pledge to invoke the nuclear option but suggested Wednesday that he would do it if he had to.

“It will be really up to them [Democrats] how the process to confirm Judge Gorsuch goes,” he told Fox News.

Sen. Mike Lee (R-Utah) told CNN on Tuesday that, “We will get him confirmed one way or the other.”

Lee said the former Democratic Senate leader, Harry Reid, cast the die when he eliminated the filibuster for all appointments except for the Supreme Court. That is an exception that existed on paper only, Lee said.

“There is no next step,” he said. “This is the step they took in November 2013.”

There are drawbacks to enforcing the two-speech rule rather than simply changing the filibuster. It would require Republicans to remain near the chamber throughout the debate so the party could muster a quorum any time Democrats called for adjournment or tried to switch topics, which would reset the clock.

And if all 48 Democrats (including two independents who caucus with the party) held firm, with each speaking twice for many hours a time, such a spectacle could shut the Senate down for weeks and prevent any other business from taking place.

“The two-speech rule is unworkable,” said Carrie Severino, chief counsel and policy director of the Judicial Crisis Network.”It requires a tremendous amount of time and resources.”

Severino, whose organization supports Gorsuch, said Democrats made clear before the 2016 election that they were prepared to change the rule if Hillary Clinton had won and their party had taken control of the upper chamber.

“There’s no reason to have a 60-vote standard for Republicans and a 51-vote standard for Democrats,” she said. “We know the Democrats would eliminate the filibuster for Supreme Court justices if the shoe were on the other foot.”

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Bovard, of the Heritage Foundation, questioned how long Democrats would remain committed to a filibuster if they knew it was futile. She predicted it would fall apart in a couple of days. She said the strategy also would prevent Republicans from repeating the mistake Reid did. She pointed out the filibuster rule technically cannot be changed without 67 votes. Reid simply appealed the objection to the Democratic chair and forced the change.

“Reid broke the rules to change the rule,” she said.

Bovard said if the Republicans go nuclear, it will lay the groundwork for one day eliminating it altogether. Then the Senate will become more like a smaller version of the House of Representatives.

“What’s the point of having a Senate?” she asked.

Bovard acknowledged that enforcing the two-speech rule would take more work for the majority, which is why she said it probably will not happen.

“McConnell hates inconveniencing his members,” she said.