Q&A: Filibuster, cloture and what the 'nuclear option' means for Gorsuch nomination and future of the Senate

As the Senate heads toward a showdown this week over President Trump’s nominee of Neil M. Gorsuch to the Supreme Court, the stalemate threatens a history-making upheaval in the way the upper chamber operates. Here’s a brief history of the filibuster, cloture and the “nuclear option” — and what this week’s potential rule change could mean for the future of the Senate.

What’s a filibuster?

The Senate has from its start operated on the principle of limitless debate — the idea that any one senator could stand and talk endlessly about an issue. It’s a way to woo lawmakers to your side or, more pointedly, to block bills or other measures from advancing. Think of Jimmy Stewart holding forth in “Mr. Smith Goes to Washington.”

What’s the point of so much talking?

The idea for the Senate was that the upper chamber would run differently from the House, even though it, too, according to Senate.gov, once allowed unlimited debate until the number of representatives grew. The Senate would be a slower-moving place, and require bipartisan cooperation to advance legislation, a counterweight to the passions of the majority-rules people’s House.

How do senators stop a filibuster?

All that talking, though, made it easy for senators to block bills, and they did. The Senate became a “breeding ground for filibusters,” according to Senate.gov. That became too much for President Woodrow Wilson at the onset of World War I, as one 23-day filibuster tanked his effort to arm merchant ships. Wilson urged the Senate to develop a work-around.

Has the filibuster ever been changed?

Senators in 1917 agreed upon a rule change to provide a way to end a filibuster – ending debate – with a two-thirds vote of the senators. That process is called cloture.

What, exactly, is cloture?

Cloture began as a rarely used tool to end filibusters, and it is a cumbersome, time-consuming process. Once a cloture petition is filed, an intervening day must pass before a vote can be taken. After that, there is another 30 hours of debate before a vote can occur on the actual bill being considered. By the 1960s, the filibuster, though, remained a force, including a 60-day filibuster of the Civil Rights Act. A decade later, in 1975, the Senate changed its rules again, lowering the cloture vote threshold needed to end a filibuster to 60 votes, as it remains today.

Why don’t senators still stand up and talk, Jimmy Stewart-style, anymore?

Over the years, senators have largely dispatched with the drama, and instead simply signaled their intent to filibuster. That’s enough for party leaders to file cloture, or move on to other items. When a senator does seize the floor, as some have recently done, they’re usually simply filling the cloture time already required to overcome the filibuster. These days, dozens, if not hundreds, of cloture votes are taken during a two-year Senate session.

Has a Supreme Court nominee ever been filibustered?

Traditionally, senators are disinclined to filibuster a president’s Supreme Court pick, even if they ultimately vote against the nominee. One exception was President Lyndon B. Johnson’s nomination of Supreme Court Justice Abe Fortas to become chief justice in 1968. He ran into bipartisan opposition and was filibustered.

Why is a filibuster of Gorsuch such a big deal?

The planned Democratic filibuster of Gorsuch this week would be the first purely partisan block of a president’s choice for the Supreme Court. Republicans argue that this is undue partisanship, while Democrats contend that they are simply maintaining the 60-vote threshold needed to advance nominees — particularly after Republicans refused to consider President Obama’s nominee, Judge Merrick Garland, after the seat was made vacant in February 2016 with the sudden death of Justice Antonin Scalia. The standoff has led Republicans to threaten the so-called nuclear option.

What is the “nuclear option”?

Over the years, both Republicans and Democrats have threatened to use this tactic – changing the Senate rules to lower the threshold needed for judicial nominees to a simple majority. It is viewed as such a dramatic step in the procedural arms race that it’s been likened to nuclear warfare. Such a move was narrowly averted in 2005 during a partisan standoff over President George W. Bush’s district and appellate court picks. But in 2013, Democrats responded to a Republican blockade of Obama’s nominees — an unprecedented escalation of the partisan fights over appointments — by changing the rules to allow a simple-majority approval of judicial or executive branch nominations. Democrats were able to swiftly approve Obama’s picks, but deploying the nuclear option backfired when they became the minority and President Trump’s Cabinet nominees this year were able to be approved by Republicans with the lower, 51-vote threshold. Though the 2013 rule change excluded Supreme Court nominees, it opened the door for Republicans to use the nuclear option this week to allow Gorsuch to be approved over the Democratic filibuster.

Will this bring on the end of the filibuster?

Senators are increasingly worried that, at this rate, the filibuster may one day be abolished, making the Senate operate more like the House does. Even though Senate Majority Leader Mitch McConnell (R-Ky.) and Senate Minority Leader Charles E. Schumer (D-N.Y.) insist this week only involves the Supreme Court nominee, senators are not so sure. They fear it’s only a matter of time before legislation, too, is no longer subject to a filibuster. And that, they say, would substantially change the way the Senate operates, relying less on bipartisan cooperation and more on majority rule.

lisa.mascaro@latimes.com

@LisaMascaro

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