While Judge Neil Gorsuch has moved out of the Judiciary Committee and is headed for a Senate confirmation vote this week, the Democrats and Republicans are also moving into position for a showdown over their own parlimentary rules – and ones that don’t translate well to the American public at large. We hear the term “nuclear option” and think “large explosion.” Well, not so much when it comes to the Senate rules. Yes, it changes Senate procedure from now on. But nothing actually explodes – except maybe the opposing party’s talking heads.
So what exactly is the nuclear option?
Though it is sometimes referred to as a rule change, it’s actually a change in Senate precedent.
The Senate currently has 44 rules. But altering those rules requires 67 votes. So with only 52 Republican senators, McConnell can’t switch Senate rules. But he could set a new precedent.
See, the Senate also operates on precedent – a set of parliamentary criterion based on things that happened before. So, if you can’t change the rules, perhaps establish a new precedent. (emphasis in the original)
The Senate is currently split at 52 Republicans and 48 Democrats (yes, I know there are two “independents” in that Democrat count. They caucus with the Democrats, they count as Democrats). While Judge Gorsuch passed through to his seat on the Court of Appeals with a unanimous vote back in 2006, Democrats are still nursing a grudge over the Biden Rule. So, with over 40 votes, the Democrats can stop up the works by preventing cloture and engaging in a filibuster.