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February 1, 2017

Going Nuclear Not the Only Option

The GOP’s options on Trump’s SCOTUS nominee are not as limited as many suggest.

Senate Minority Leader Chuck Schumer (D-NY) vowed almost immediately after Donald Trump announced Judge Neil Gorsuch as his Supreme Court nominee that the Democrats would filibuster his pick. Schumer said, “The Senate must insist upon 60 votes for any Supreme Court nominee,” which of course he will seek to prevent. Much of the mainstream media has argued that this move effectively paints Republicans into a corner of having to engage the so-called “nuclear option” if they are to succeed in confirming Trump’s choice.

It is true that the nuclear option may be the quickest way to overcome a Democrat filibuster. And it appears that Republicans are not shying away from considering this tactic, as Sen. Ted Cruz (R-TX) stated yesterday: “The Democrats are not going to succeed in filibustering the Supreme Court nominee. All procedural options are on the table. The bottom line is we will confirm a strong conservative to replace Justice Scalia.”

However, the reality is that Republicans have another option available to them. Our friends at The Heritage Foundation have noted Rule XIX, also known as the two-speech rule, in which members of the Senate are strictly limited to two speeches on a nomination consideration in a legislative day. Unlike a 24-hour day, a legislative day continues until the Senate adjourns, which could literally last for months. After all members have spoken, a simple majority vote would be all that is needed for confirmation. So Republicans could simply wait out the filibuster and in the meantime highlight the fact that Democrats are engaging in pointless political grandstanding, and, by doing so, are holding up important legislative business.

The fact is, 10 Democrat senators are facing re-election campaigns in states Trump won. They may be persuaded to see the futility in engaging a filibuster that will most certainly fail. The good news is, Republicans are bound and determined to get the nomination through, one way or other.

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