Most legal scholars agree that Supreme Court nominee Neil Gorsuch has the necessary experience, expertise, and temperament to be confirmed as Justice Scalia’s replacement. But suppose the Democrats decide to filibuster the nomination and Republicans can’t get the 60 votes needed to break the filibuster? If that happens, you can expect the Republicans to “go nuclear” and change the filibuster rules so that only 51 votes are required to shut off debate. To understand what that means, here’s a short backgrounder on the filibuster:
Senate filibusters have been around since 1837. Beginning in 1917, a cloture vote to shut off debate required a 2/3 supermajority; that was changed to 60 votes in 1975. Sen. Strom Thurmond (D-SC) set the record with a 1957 talk-a-thon against civil rights legislation: 24 hours, 18 minutes. Nowadays, senators need not actually speak. They merely announce their intent to prolong debate and that triggers the 60-vote cloture rule.
Suppose senators want to revise the 60-vote rule. Rules can be revised by majority vote. But suppose further that the vote on revising the 60-vote rule is itself filibustered. According to Senate rules, if a vote to change the 60-vote rule is filibustered, it takes two-thirds of the senators to break the filibuster. The so-called nuclear option would override that rule.
There are two versions of the nuclear option – one simple and one complicated. First, the simple version: On the first day of a new Congress, Senate rules don’t yet apply. Therefore, new rules can be adopted – and debate can be halted – by the default procedure, which is majority vote. After the first day, however, that option isn’t available.
The second version is more complicated; but it can be used at any time. One party, let’s say the Republicans, moves to change the 60-vote cloture rule to 51 votes. The Democrats filibuster the rule-change – which means it would take 67 votes to close debate. Republicans then go for the nuclear option – which is a point-of-order, upheld by the presiding officer, declaring that the 67-vote requirement is unconstitutional.
Read more at https://www.cato.org/blog/filibuster-primer
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