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Late Senate Majority Leader Harry Reid (D-Nev.) detonated the first Senate “nuclear option” in 2013, curbing the filibuster to confirm executive branch nominees – except for the Supreme Court.
Former Senate Majority Leader Mitch McConnell (R-Ky.) ignited the second “nuclear option” in 2017 to confirm Supreme Court Justice Neil Gorsuch, and lower the filibuster bar for nominations to the High Court.
THUNE LAYS GROUNDWORK FOR NUCLEAR OPTION IN SENATE FIGHT OVER TRUMP NOMINEES
Now, Senate Majority Leader John Thune (R-S.D.) is likely to detonate the parliamentary equivalent of a “suitcase nuke” later this week.
Thune will follow the playbook established by Reid and McConnell to alter the Senate precedent (not a rules change) to expedite the confirmation of lower-level nominees in groups. This plan will not include judges nor cabinet secretaries.
Thune sets his gambit into motion tonight by introducing a resolution to speed up a slate of about 40 nominees. By rule, the Senate will take a procedural vote to break a filibuster on his resolution to confirm the batch of nominees on Thursday. That needs 60 yeas. The Senate won’t get 60 yeas.
But this is EXACTLY the scenario that Thune wants.
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The coin of the realm in the Senate is unlimited debate. But the only time it CAN’T DEBATE SOMETHING is when an issue fails. So a FAILED vote to break the filibuster backs the Senate into the exact parliamentary cul-de-sac which Thune wants.
At the end of the roll call vote, Thune will likely switch his vote from yes to no on breaking the filibuster. That’s because Senate rules allow a senator to demand a re-vote if they are on the prevailing side of the issue. In this case, Thune is suddenly with the “noes,” even though he initially voted yes to break the filibuster.
By doing so, Thune can then order a revote on the failed vote. And since the Senate is in this unique posture of not allowing any debate, Democrats are paralyzed. They can’t do anything to stop Thune from what he plans next.
Thune will then make a point of order.
Thune will assert that on a resolution like the one he drafted, a bloc of lower-level nominees (e.g. – the ones now before the Senate) does not need 60 votes to break a filibuster. The chair – potentially Senate President Pro Tempore Chuck Grassley (R-Iowa) or even Vice President Vance, who is the President of the Senate – will rule that Thune is wrong. Senate rules and precedent DO require 60 votes to break a filibuster on this type of resolution.
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Thune will then demand a vote OVERTURNING what the the chair ruled. He will assert that a simple majority is necessary for this type of resolution – even though that’s never been the case before.
The Senate will vote. And if 51 senators vote in favor of ruling against the chair, the Senate will have established a new precedent for lowering the threshold from 60 to 51 on this type of resolution – quickly moving a batch of nominees all at once.
Once the Senate does that, Thune will need to set up ANOTHER procedural vote under the NEW provisions to break a filibuster on Monday, September 15. That would enable the Senate to confirm all of the nominees in question – in one fell swoop – on Wednesday, September 17.
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