This column by ACRU Fellow Ken Klukowski was published April 6, 2017 by Breitbart.
WASHINGTON—Today the U.S. Senate will vote on the constitutional option that would end over a decade of national brinksmanship over Supreme Court and federal court nominations.
Debate begins at 10:00 AM on the nomination of Judge Neil Gorsuch to the Supreme Court of the United States. Around 11:00 AM, Senate Majority Leader Mitch McConnell (R-KY) will begin procedural moves required under Senate rules to position for the big vote.
During this period, McConnell will attempt a force a final vote on Gorsuch. Democrats will object. Then McConnell will make a procedural point of order that the rule allowing for filibusters—Senate Rule XXII—does not apply in this situation.
Democrats in 2013 forced through a vote that Rule XXII does not apply to nominees for the federal district courts or federal courts of appeals (or high-level executive branch nominees, either). That vote created a precedent. Today’s vote will essentially say that this 2013 precedent should apply to the only type of presidential nominee not already covered by it—those for the Supreme Court.
The presiding officer of the Senate will rule in McConnell’s favor. A Democrat—presumably Sen. Chuck Schumer (D-NY)—will object, and appeal the ruling of the chair.
That appeal is a non-debatable question, meaning it goes immediately to an up-or-down vote of the full Senate. This is the vote on the constitutional option (often called the “nuclear option,” especially by its critics).
The ruling of the chair is expected to be sustained on a 52-48 straight-line party vote. This vote will abolish judicial filibusters, consistent with the Democrats’ own precedent from 2013.
This will then start a final period of limited debate on the Gorsuch nomination, but guarantees a final vote Friday, where Gorsuch will be confirmed with a bipartisan majority.