Neil Gorsuch confirmation vote: The "nuclear option"

Judge Neil Gorsuch’s Senate confirmation this week is a foregone conclusion, though at this point, doing so will require changing Senate rules with a maneuver fondly nicknamed “the nuclear option.” The term sounds a little overblown outside the Capitol -- and it sounds even odder when you consider that the nuclear option is used to break a filibuster -- but inside the staid Senate chamber, once invoked, it’ll explode precedent in Supreme Court nominations.

Bills in the Senate require 60 votes to advance. If they fall short of 60 votes, they’re blocked -- or “filibustered.”  The way around it is the nuclear option -- changing the Senate rules so that a simple majority can be used to advance the bill.
Republicans like South Carolina’s Sen. Lindsey Graham said the nuclear option is their only option.

Republicans like South Carolina’s Sen. Lindsey Graham said the nuclear option is their only option.

“Hamilton is rolling over in his grave. I’m sorry we got here, but we are where we are,” Graham said Monday. “And I’m going to vote to change the rules because I’m not going to be part of a Senate where Democrats get their judges and Republican can never get theirs. That’s not what it’s all about.”

How will this play out?

After the Judiciary Committee sent Gorsuch’s nomination along Monday to the full Senate, Majority Leader Mitch McConnell had to wait a day before he could put Gorsuch’s nomination up for a vote. 

On Tuesday, after he failed to field 60 votes to move forward, McConnell stood in the well of the Senate and announced, “We are experiencing here the first partisan filibuster of a Supreme Court nominee in the history of the country.” (A note here: this is not the first time a Supreme Court nominee has been filibustered -- Abe Fortas was also filibustered when he was elevated from associated justice to chief justice -- but that was a bipartisan filibuster).

At around 6:30 p.m. McConnell filed cloture -- a motion to end debate and hold the vote. 

Voting on that motion requires yet another day of waiting. Wednesday is the intervening day, so the actual cloture vote will be scheduled for Thursday, one hour after senators come into session.  So, if the Senate comes into session at 9 a.m., for example, the vote to end debate would be scheduled for 10 a.m.

As of this writing, according to CBS News’ latest whip count, McConnell will fall short of the 60 votes he’ll need to move on to the final confirmation vote.

The nuclear option

At this point, McConnell, through a number of parliamentary votes and rulings, will move to change the rules of the Senate, so that a filibuster of a Supreme Court nominee can be ended with a simple majority vote of senators rather than a super majority of 60 votes that are needed now.  In case you missed it, that was the nuclear option. 

Then the Senate will move to a simple majority vote to end debate on the Gorsuch nomination.  Fifty-two Republicans and four Democrats have already said they will vote to advance the nomination. Following that simple majority cloture vote there will be 30 hours of debate allowed on the nomination.  And then there will be a simple majority confirmation vote. 

Will every Supreme Court confirmation be decided this way?

Seems likely. Republicans could vote to undo the temporary rule at any point, but why would they? And even if they did, what would stop Democrats from doing the same thing.  Like Gorsuch, the senators in Congress, it turns out, are fond of precedent. 

CBS News’ John Nolen contributed to this story