Some
believe that passing laws and confirming appointees in the U.S. Senate
requires 60 votes, calling any attempt to do otherwise a “nuclear
option.” Such a move is well within the Senate’s defined constitutional
powers, but allegedly a newfangled innovation in an institution supposed
to prize precedent and tradition.
The trouble is the Senate did not start out working this way, and even if we are inclined more toward recent practice,
the sum of all fears has
already been realized: Former Senate Majority Leader Harry Reid (D-NV)
pushed the nuclear button. The only reason anything requires 60 votes
anymore is because 51 votes say so. Does anyone doubt that, if Senate
Democrats had a majority in 2016, Judge Merrick Garland would have
replaced Justice Antonin Scalia on the U.S. Supreme Court? Relaxing
on the beach and pretending that nothing has happened in the Senate wastes our precious majority without securing future minority rights.
Simple Majority Votes Used To Be The Norm
Let’s go back to
day one of
the Senate in 1789. Neither the Constitution nor the original rules
describe anything approximating a filibuster, in which a single Senator
could delay a vote by holding the floor as long as he could stand. In
fact, quite the opposite: an original rule specifically allowed for a
simple majority to shut off debate. That rule was eliminated in 1806,
yet a Brookings Institution study found that no real filibusters took
place until the 1830s. Even then, most major legislation passed with
simple majority votes, as Senators in the minority understood that to
use the filibuster too frequently would invite a rule change.
In
1917, a formal rule was reintroduced to allow debate to be shut off.
This time called “cloture,” the rule required a two-thirds majority
vote. And yet, according to Senate procedure expert Martin Gold,
“between 1917 and 1962, cloture was imposed only five times.” The
filibuster frustrated but did not prevent civil rights legislation, and a
victorious but irritated majority in 1975 reduced the number of votes
required to shut off debate from two-thirds to three-fifths, i.e. the
famous 60-vote threshold.
There
are two controversial ways to the reduce 60 votes to 51. The first path
would change the Senate rules at the beginning of a new session, i.e.
every two years. Current Senate rules require a two-thirds majority to
change Senate rules, but Senators have debated since 1789 whether
previous Senate sessions can bind future Senate sessions. The question
has not been definitively resolved because Senators have always tended
to renew the rules. But if Senators are unbound, then the Senate could
change its rules at the beginning of a new session with only 51 votes,
and use that rule change to lower the threshold for every other vote to
51.
We Can’t Ignore The Precedent Harry Reid Set
The
second path is the one Senate Majority Leader Harry Reid chose, and is
even more controversial among the small group of people who have any
idea how the Senate operates. In 2013, Republicans were using Senate
rules to block leftist judges from being confirmed. Reid did not have
the 60 votes required to invoke cloture and shut off debate and he
certainly did not have the 67 votes required to change the rule, so he
decided to pull the nuclear trigger. Reid invoked a point of order to
redefine the words “three-fifths” to mean a “simple majority” for
judicial appointments below the Supreme Court. 51 Democrats supported
the doublespeak, and
the day after the Senate was forever changed.
And
yet still some insist, despite all the evidence of radioactivity, that
the Senate still enjoys some sort of pre-nuclear unique practice about
Supreme Court justices or major laws. Imagine if the Soviet Union had
nuked all of our medium-sized cities but had temporarily spared the
biggest metropolitan areas. Would we spare Moscow? Of course not.
Republicans Shouldn’t Fear The Nuclear Option
The
Senate needs to confirm Gorsuch with 51 votes. Fewer than 60 is
preferred because Gorsuch is essentially unobjectionable and therefore
provides a good precedent when the Senate needs to push through a
qualified conservative justice who might be more controversial—like
Robert Bork once was.
In
some ways, I would prefer an alternative. I worked for the Senate
Steering Committee in law school, and we took maximum advantage of the
Senate’s rules empowering a minority to make a difference. Allowing a
minority to block bad ideas can be meaningful to conservatives because
even a Republican majority has proved unreliable in curbing government.
But the sad truth is that Harry Reid killed minority rights, and
Republican majorities need to summon the courage to shrink government
and advance a constitutional conservative agenda. If they don’t, then
what’s the point of winning elections at all? Republicans should
learn to stop worrying and love the bomb. 
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