Play Live Radio
Next Up:
Available On Air Stations

Republicans' 'Nuclear Option' Could Have Lasting Effects On Federal Judiciary


Today's the day the United States Senate is likely to go nuclear. The fight is over President Trump's nomination of Neil Gorsuch to the Supreme Court. The seat has been vacant for over a year after the death of Justice Antonin Scalia. Republicans blocked President Obama's choice to fill the seat by refusing to talk with his nominee for more than 10 months - that, of course, was Merrick Garland.

Democrats are now trying to block Trump's pick, Neil Gorsuch, by talking about him in a filibuster. But later today when Democrats refuse to end that filibuster, Republicans say they will change the rules of the Senate and thereby change the Senate itself and likely the federal judiciary for years to come. Joining us to sort all this out is NPR legal affairs correspondent Nina Totenberg. Hi, Nina.


MARTIN: What's going to happen today?

TOTENBERG: Well, there will be a vote to cut off debate. It will fail. And then there'll be a complicated set of parliamentary maneuvers which will end with a vote on whether to change the Senate's rules. And it only takes 51 votes to change the Senate's rules. And since there are 52 Republicans, they have those votes at the moment. And the rules of the Senate will change for Supreme Court nominees. And hereafter, it will only take a majority to approve a Supreme Court nomination.

MARTIN: So we know this, Mitch McConnell has said he is definitely going to employ the so-called nuclear option.

TOTENBERG: Well, never say never, but I don't see any slowdown in this train coming down the tracks.

MARTIN: This isn't the first time though the Senate has done this, right? Democrats changed the rules for lower court nominees under President Obama. Remind us what happened there.

TOTENBERG: That was 2013. And the Republicans had used the filibuster in an unprecedented way. Instead of using it episodically on big things they cared about, they used it systematically to block both executive appointments, Cabinet, sub-Cabinet appointments and lower court judicial appointments. And the Democrats finally said OK, we're going to change the rules. It's just going to take a majority vote.

At the time, there were I think 50 judicial nominees pending and almost 70 executive nominees pending. And they just felt like they couldn't function anymore this way. They offered to make a deal. Senator John McCain negotiated a deal. He took it back to the Republican caucus. They said no. And that was the end of the filibuster for executive nominations and lower court judicial nominations.

MARTIN: So what does this new nomination process, when this becomes the new rule, what will it mean for the Supreme Court?

TOTENBERG: Well, it's likely to mean more ideological nominees on both the right and the left because if you don't have to get 60 votes to cut off debate, you don't need to appeal to the middle. It's likely to make these fights even bloodier than they were because you really have to dirty somebody up to deprive that individual of 51 votes.

Senator Lindsey Graham put it this way. He said the result of this could be - he said will be, I think could be - that nominees will be more ideological, that every Senate race becomes a Supreme Court referendum. You can see that right now. There are millions, I think tens of millions of dollars, being spent mainly by the right but also by the left over the Gorsuch nomination. So you can see the handwriting on the wall. And it's not pretty.

MARTIN: Neil Gorsuch, if we assume that this rule change happens, the Senate goes nuclear, he becomes the next Supreme Court justice. What will his presence mean for the court?

TOTENBERG: Well, they always say that every time there's a new justice, it changes the whole chemistry of the court. I expect he will be as conservative as Justice Scalia and in some cases more conservative than Justice Scalia. But he's not as sharp a personality in the sense of elbowing people. And...

MARTIN: So that could help him perhaps?

TOTENBERG: I think it will. I think it may well make him in some senses more influential than Scalia was. Scalia was historically influential on the grand stage, the national stage. He molded legal opinion and got people talking about his views in a way that had never occurred before. Gorsuch may be more influential internally.

MARTIN: NPR legal affairs correspondent Nina Totenberg. Thanks so much, Nina.

TOTENBERG: Thank you. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.