ANALYSIS: Senate's 'nuclear option' may have lasting consequences

Move would be another step in the continuing deterioration of bipartisanship.

ByABC News
April 6, 2017, 5:00 AM

— -- The deterioration of bipartisanship in Washington is something that's been occurring for years — but a development that may take place as soon as today will divide the Democrats and Republicans in the legislative branch even further.

Senate Majority Leader Mitch McConnell will move to change the Senate rules to allow a simple majority (at least 51 votes) to end debate on the Supreme Court nomination of Judge Neil Gorsuch, instead of the minimum of 60 votes required by Senate rules. It may sound like just some simple math, but using the "nuclear option" is a fundamental shift in the way Supreme Court justices are confirmed. It also could signal a change in the type of judges who may be nominated by presidents on either side of the aisle down the road.

Why is it happening?

Under traditional Senate rules, at least 60 votes are needed, but most Democrats have said they will filibuster and refuse cloture, the Senate procedure to end debate and vote, effectively blocking Gorsuch's nomination. In order to bypass this, Republicans will go ahead anyway by deploying the nuclear option, a maneuver to allow a simple majority of senators to end the debate and vote for Gorsuch's confirmation. Going nuclear would be the latest — and one of the most significant — signs of increasing political polarization in American politics.

What are the risks?

There's a tendency for presidents of both parties to nominate judges to the highest court who can make it over that 60-vote hurdle; essentially such judges are seen as more moderate. The Democrats are saying now they are opposed to Gorsuch because he is extreme and was evasive during his confirmation hearing, but there's no doubt that continued deployment of the nuclear option would mean more extreme judicial choices on both sides of the aisle. Not choices like Gorsuch or, for that matter, Judge Merrick Garland, then-President Obama's choice to replace Justice Antonin Scalia after he died, but Garland wasn't even given a hearing by Republicans. Democrats decided to proceed with the filibuster in part because of that decision by Republicans. Without needing to get at least 60 votes, presidents will want to cater to their base even more with these critical choices.

These possibilities worry lawmakers who see the nuclear option as a no-turning-back scenario, and it should worry the public as well.

One concerned senator — and a longtime defender of Senate rules — is John McCain, R-Ariz. In a floor speech this week he cautioned against the historic rule change, saying, "What we are poised to do at the end of this week will have tremendous consequences, and I fear that someday we will regret what we're about to do. In fact, I'm confident we will."

He's far from alone. If there's no reason for the two parties to work together and at least try to offer nominees who are acceptable to lawmakers in both parties, there's likely no reason for them to work together on any policy, legislation or issue.

It should be noted that politics is, of course, at play here as well. Three of the Democrats supporting Gorsuch — Sens. Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Joe Donnelly of Indiana — are from red states and are up for re-election in 2018. Others, like Sens. Claire McCaskill of Missouri and Tammy Baldwin of Wisconsin, are from states Trump won, are up for re-election next year and will vote against Gorsuch, with the political calculation that they will rely on the Democratic base in their states.

Using the filibuster and the nuclear option has support from the bases of the two parties, but it's a slippery slope Congress may not recover from.

And it's clear Americans want both sides to work together, so Congress should heed this desire and try its hand at bipartisanship.

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