SCOTUS: The Nuclear Option is Not Enough

by | Apr 3, 2017

SCOTUS: The Nuclear Option is Not Enough

by | Apr 3, 2017

On January 31,  president Donald Trump nominated federal appellate judge Neil Gorsuch to fill a vacancy on the US Supreme Court created nearly a year before by Associate Justice Antonin Scalia’s death.

More than two months later — nearly 14 months since Scalia’s passing and after 13 months of Republican stalling and refusal to even consider former president Barack Obama’s nomination of appellate judge Merrick Garland — the US Senate is finally set to vote on Gorsuch’s nomination once it clears a final procedural hurdle (more on that below).

Unlike most politically engaged Americans, I have no strong opinion on the character or qualifications of Neil Gorsuch (or, for that matter, Merrick Garland). Because they’re appointed for life, Supreme Court justices tend to develop minds of their own rather than slavishly fulfilling the wishes of the presidents who nominate them or the parties they claim affiliation with.

I do, however, have strong and very negative opinions on the melodrama attending the whole process.

Chief Justice John Marshall was nominated to his position on January 20, 1801. The Senate stalled, declining to confirm Marshall and pushing president John Adams to substitute someone else. The matter dragged on … for seven whole days before a vote. Marshall took his seat on the court less than two weeks after Adams asked him to serve.

Two weeks in 1801, when news traveled at the speed of horse. Fourteen months in 2016-17, when news travels at the speed of light. What’s wrong with this picture?

What’s wrong with it is that the Senate is a dilatory, time-wasting, procedurally hidebound body that these days walks (at a snail’s pace) every action of significance through multiple hearings in front of various committees before acting.

The final procedural hurdle I mentioned above is called “cloture.” It’s a vote to end debate, wrap the matter up and give Gorsuch the Senate’s final,  for real, thumbs up or (or down).

Under current Senate rules cloture requires 60 votes. Republicans, with a bare majority in the Senate and no hope of winning cloture, are threatening “the nuclear option” — a rules change, which only requires a majority, to make cloture itself a mere majority vote.

I don’t think the “nuclear option” is enough. I’m with MacBeth: “If it were done when ’tis done, then ’twere well It were done quickly.”

Instead of changing the cloture rules, why not change the entire confirmation procedure? Put a hard deadline in the rules: On the tenth day following nomination, the nominee receives an up or down vote of the full Senate, period, no exceptions.  Pre-vote committees get that long, and no longer, to do their jobs.

The Constitution calls for the Senate’s “advice and consent” on presidential appointments, not for months or years of screwing around.

About Thomas L. Knapp

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

Our Books

latest book lineup.

Related Articles

Related

TGIF: Israel Humiliated

TGIF: Israel Humiliated

To more fully understand the ferocity of Israel's massacre of the people of the Gaza Strip, it's perhaps worth considering that on October 7, 2023, the reputedly invincible Israeli Defence Forces and intelligence services were made to look like fools caught sleeping...

read more
In Defense of Inaction

In Defense of Inaction

On March 17, The Wall Street Journal published an op-ed by a woman named Mary Anastasia O’Grady titled, “Giving up on Haiti Isn’t a U.S. Option.” She argues, in short, that Americans don’t have a choice but to continue doing all the things that have failed in the past...

read more
Is America a Rogue Superpower?

Is America a Rogue Superpower?

“Unipolar” used to mean that the United States was, at least in theory, alone in leading the world. Now “unipolar” means that the United States is alone and isolated in opposition to the world. In global affairs, a hegemon is a nation that leads because it has the...

read more
Collateral Murder 2.0

Collateral Murder 2.0

When the footage of Reuters journalists and civilians were Wikileaked to the world, there was outrage. A shame exhibited by some in the American government caused them to reel from the crime that had been exposed, to downplay the prevalence of such murders, and...

read more
The Fed and the Fight for 2%

The Fed and the Fight for 2%

Last week, Jerome Powell & Co. met to issue an immediate decision regarding the status of the federal funds rate for March, and to provide some insight into the trajectory of monetary policy for the rest of 2024 and into 2025. As with the past few inflation...

read more