Let’s Make a Deal and Not Go Nuclear

James Goldin

The U.S. Senate is in the midst of one of the most contentious candidate hearings in recent memory. The possible confirmation of Judge Neil Gorsuch as a Supreme Court justice is shaping up to be one that may forever change the Senate. Currently, there is a requirement of 60 votes to overcome a filibuster. This requirement is actually only a procedural rule and is not a binding obligation. However, in order to confirm a candidate, the Constitution only requires a simple majority for any candidate. This means that, if Senate Majority Leader Mitch McConnell wants, he can go the “nuclear option” and override the current 60-vote rule. This option bears its name due to its similarity to a nuclear bomb, as it is the end-all-be-all of weapons, and permanently changes the location of its usage. Another pressing similarity between the nuclear option and a nuclear bomb is that they both should never be used.

Senator McConnell’s actions reflect the need for the Republican supermajority to show the American people that they can actually do something that has to do with the process of governance. No longer merely an opposition party, many Republicans are finding that, shockingly, governance is hard. Bipartisanship and negotiation are the rules of the game. You simply can’t, or at least shouldn’t, deliver an ultimatum to the opposition and demand they go along with you or you change the rules. Judge Gorsuch was given a legitimate chance during his nomination process and confirmation hearing. At the anger of their more progressive constituents, Senate Democrats did what the Republicans failed to even attempt with Judge Garland. The misgivings among Democrats that block the 60 votes needed to confirm him come from Judge Gorsuch’s impressive avoidance of saying anything substantial at all during his hearing. His evasive demeanor and avoidance to outline his beliefs have made the misgivings against him legitimate.  

You would expect, in such circumstances, further hearings of Judge Gorsuch would occur, or better yet that the Republicans would find a more moderate candidate. Instead, like a foolish poker player, Senator McConnell has gone all-in on a bad hand. Telling reporters on Tuesday, March 28 that “he’ll be on the floor of the Senate next week and confirmed on Friday,” McConnell has all but confirmed that if he needs to, the nuclear option will be used. If that happens, 230 years of senatorial precedent will be thrown out because one conservative candidate refused to give meaningful answers during his hearing. If Senator McConnell and other Republicans want to show the country that they can actually lead and reach across the aisle, they should not employ the nuclear option.

The tragic part of this whole endeavor is that there are other options to address the vacancy on the Supreme Court that don’t require the destruction of bipartisanship or precedent. One option is to ask the current justices who is ready to retire and have one of them do so; this would allow for both Garland and Neil Gorsuch to be confirmed. Another more radical plan is to have the size of the Supreme Court be expanded to include both justices. Better yet, let’s have Mitch McConnell – and by extension, President Trump – show the country that they can actually lead and find a more moderate candidate. Even if they refuse to back down on Gorsuch, there are other options besides going nuclear. If they are both such fantastic deal makers, this task should be easy for them.