This column by ACRU Fellow Ken Klukowski was published March 23, 2017 by Breitbart.
WASHINGTON, D.C. — On Thursday, Sen. Lindsey Graham (R-SC) said that if Democrats tried to filibuster Neil Gorsuch’s nomination to the Supreme Court, he would vote for the “constitutional option” to permanently end filibusters of nominees to the nation’s highest court.
For the first time in American history, in 2003 Sen. Chuck Schumer (D-NY) persuaded Senate Democrats to use the upper chamber’s unlimited-debate rule on legislation to block a final vote on judicial nominations, at that time blocking several of George W. Bush’s nominees to the federal appeals courts.
Republicans then considered the constitutional option — also called the “nuclear option” — to restore the 200-year-old practice of always allowing votes on judges, by ruling that filibusters apply to legislation, but not to nominations. A decade ago, Graham became part of the “Gang of 14,” which negotiated allowing most of the stalled nominees to get a final confirmation vote in exchange for not abolishing the filibuster in the future.
Then in 2014, it was Sen. Harry Reid (D-NV) who led Democrats in going nuclear over presidential nominations to the executive branch and every federal court except the Supreme Court. Republicans said the only reason Reid did not include the High Court at the time is that there were no vacancies at the time.
With Schumer taking things to a new level and vowing to filibuster a Supreme Court nominee, Graham ended months of commentators’ speculation by telling Mike Gallagher’s radio show:
If my Democratic colleagues choose to filibuster this guy, then they will be telling me that they don’t accept the election results — 306 Electoral [College] votes — that they’re trying to delegitimize President Trump. And that’s not right, and we would have to change the rules to have the Supreme Court like everyone else.
There are 52 Republicans in the Senate. It would therefore take eight Democrats to reach 60 to invoke cloture on Gorsuch, or for all but two of the Republicans to hang together on the procedural question to clarify that the constitutional option applies to all presidential nominations, including those to the Supreme Court.