Tag Archives: Neal Gorsuch

The Supreme Court and the Filibuster

This week has the potential to be a significant week in Senate history.  Over the past two presidencies, there was a rise in the use of the filibuster to block executive branch and lower court nominees.  During the George W. Bush presidency, there were enough Democratic and Republican senators willing to work out a deal in which the Democratic senators agreed to vote for cloture on most nominations and the Republicans agreed not to invoke the “nuclear option” (exempting such nominations from the three-fifth’s rule for cloture by the vote of a majority of the Senate).  During the Barack Obama presidency, there were not enough Republican senators willing to make such a deal and the Democrats were forced to go with the nuclear option on such executive branch and lower court nominees.  However, the normal cloture rules were left in place for Supreme Court nominees.

As a starting point, here is the tentative schedule for the week.  First, on Monday, the Judiciary Committee is scheduled to vote on the nomination of Neal Gorsuch.  Right now, it appears likely that the committee will approve that nomination by a majority vote.  Assuming that the Committee sends its report on that nomination to the Senate on Monday, that would trigger Rule XXXI which provides that (except by unanimous consent which will not be given) the Senate may not vote on a nomination on the same day that the nomination is reported to the full Senate.   The Republicans will then attempt to call the matter up for a vote by unanimous consent on Tuesday.  At least one Democrat will object, and the Republicans will file a cloture motion.  Under Rule XXII, that motion will probably come up for a vote on Thursday and would take sixty votes to pass.  Based on current whip counts, those sixty votes will not be there.  If somehow, the Republicans get the sixty vote or invoke the nuclear option, Rule XXII would permit thirty more hours of debate resulting in a vote between Friday and Monday the 10th.  (Technically, the Easter state work session is currently scheduled to start on the 10th and go through the 21st.  The last two weeks of argument in this year’s Supreme Court term are the weeks of April 17 and April 24.  So if Judge Gorsuch is confirmed this week, he could sit on the last thirteen arguments of this term.  If the final vote takes place after April 21, Judge Gorsuch will not sit on any argument until the next term beginning in October.)

Assuming that the cloture vote goes as currently anticipated, the Republicans will have three options.  Option number one would be to use the Easter recess to put pressure on vulnerable Democratic senators.  Right now, the two most vulnerable Democratic senators (Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota) seem likely to vote for cloture, but there are other Democratic senators from other states that Trump won by wide margins.    While there are ten Democratic senators on the 2018 ballot from states that Trump won (and Maine’s independent Senator is not necessarily going to join the Democrats on this issue), half of those senators are from swing states.  The only two other Senators who come from states that were not too close to call in 2016 are Senator McCaskill from Missouri and Senator Donnelly from Indiana.  Unless the Democratic senators hear from party activists that party activists do not really care about this issue, the vote is unlikely to change much after the recess.  On the other hand, the Republican leadership would be in a stronger position to invoke the nuclear option after the recess.  (The more moderate members of the Republican caucus might believe that the Democrats should at least be given some time to debate and make their case before the nuclear option is invoked.)

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The Week in Review

There is an old saying that a week is a lifetime in politics.  In most weeks, there is a lot happening either behind the scenes or at lower levels (e.g., committee hearings and markups on bills that nobody is watching).  It is the rare week, however, that so much is taking place front and center competing for the attention of the American public.

The big story of the week was the non-vote on and the collapse of the Republican effort at major health care reform — the so-called Affordable Health Care Act (a name that in itself was an attack on the bill that it was trying to “repeal and replace,” the Affordable Care Act.   There are several significant aspects to this non-event.

First, despite their efforts, Donald Trump and Paul Ryan could not get the sizable Republican majority in the House to pass a bill (forget the exact details of the last version of the bill, they could not get a majority behind any version) on one of the top Republican priorities of the past seven years.  While Trump may have been a great negotiator, it is very easy to reach a two-sided deal.  (Of course, it’s possible that Trump’s belief in his negotiating skill may be one of his great delusions.  He may have just been offering the right deal at the right time and actually have been taken to the cleaners in his business negotiations.)When you have three or more sides to a deal, however, it becomes very difficult to keep everybody on board.  This problem is particularly true in politics — when one faction thinks that a bill is too conservative and the other faction thinks that the bill is too liberal, there really isn’t any change that could make both sides happy.  At that point, it’s not really about negotiating but selling.

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