Words You'll Hear: 'Nuclear Option'

We consider what might happen if Senate Republicans resort to the "nuclear option" of changing Senate rules to thwart a potential Democratic filibuster of Supreme Court Justice nominee Neil Gorsuch.

MICHEL MARTIN, HOST:

Now it's time for our regular segment Words You'll Hear. That's where we try to understand stories in the news by parsing words or phrases associated with those stories. Today, our phrase is nuclear option. Thankfully, we're not talking about warfare between superpowers, but it's a phrase we think we'll be hearing as the Senate takes up the nomination of a U.S. Court of Appeals Judge Neil Gorsuch to replace the late Antonin Scalia on the Supreme Court.

Some Senate Democrats have threatened to filibuster which means extending debate indefinitely. That's one way of delaying things. But Republicans have ways around it, including the so-called nuclear option changing Senate rules to cut off debate. I spoke with NPR's senior political editor and correspondent Ron Elving to learn more about this, and he started with some of the history of how the current rules on filibuster came about.

RON ELVING, BYLINE: The Senate has had a tradition of unlimited debate going all the way back to the 1700s. They only began to control it in the World-War-I era. A hundred years ago, they passed this rule - Rule 22 - that said if enough senators got together, they could cut off debate and force a vote. That was famously used during the civil rights period to force a vote on civil rights legislation after decades and decades of trying.

And in 1964, we got the Civil Rights Act. In '65, we got the Voting Rights Act because the Senate was able to impose a little discipline, cut off debate. They call that cloture.

MARTIN: How many votes do you need for cloture?

ELVING: In the old days, it was two-thirds majority. Now it's three-fifths. That means 60 votes. So that makes it a little easier to do. As a result, senators use this now all the time as a threat. It used to be seen as a kind of desperation thing or something you only did for the very biggest issues. Now senators routinely say I might filibuster this, I might filibuster that, I might just keep on talking. And so they're filing cloture petitions all the time.

It did not used to be considered to be good form to filibuster a Supreme Court nomination, certainly not a president's first one, certainly not if the person were highly qualified as Neil Gorsuch appears to be. So it's a little surprising that this would come up now, except the Democrats in the Senate are still smarting about Merrick Garland, not even getting a hearing, let alone a vote last year when he was a constitutionally appointed Supreme Court justice from President Obama. So that's a big part of this. It's a martyrdom issue.

Number two - they're getting a lot of pressure from their constituents who are just absolutely in a state over the Donald Trump presidency and over Hillary Clinton's loss when she won the popular vote. So they don't see Donald Trump as a legitimate president. They don't see his nominee as a normal Supreme Court nominee, and they think that justifies using the supreme weapon of the filibuster - extended debate in this instance.

MARTIN: So what's the nuclear option?

ELVING: The nuclear option is if the majority leader can't beat the filibuster, can't get enough Democrats to cross over and vote with the Republicans and get to 60 votes, then he invokes the nuclear option which is change the rules. And in the Senate, you just don't change the rules - not lightly. And the Democrats actually started this with the nuclear option with respect to other judgeship appointments and Cabinet-level appointments.

And we just saw that as President Trump's Cabinet appointments were all approved with mere simple majorities, and the Democrats couldn't filibuster any of them. Now the filibuster still applies to Supreme Court justices. But Mitch McConnell, the Senate majority leader, could change that. There's a particular procedure he could use, and he knows how. And he has promised us they're going to vote on Gorsuch, and that means if they don't have 60 votes, they have to change the rules. That's the nuclear option.

MARTIN: That's NPR's senior political editor and correspondent Ron Elving. Ron, thanks so much.

ELVING: Thank you, Michel.

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