What Is The 'Nuclear Option' Trump Is Threatening Over His Supreme Court Pick?

After a prolonged stint of inaction in the appointment of a new justice to the United States Supreme Court previously held by the late Justice Antonin Scalia, President Donald Trump on Tuesday announced his nomination of Denver court of appeals judge Neil Gorsuch to the seat. Based on his record, Gorsuch has been compared to Scalia, who also shared an originalist interpretation of the Constitution, which imagines the framers' intent when scripting the document, and was viewed as being more socially conservative in his rulings on issues regarding state and business rights.

Reaction to the nomination has been ecstatic among Senate Republicans, although the Democratic response has been mixed. As it stands, Gorsuch's nomination requires 60 Senate votes for approval, which means he will need at least six Democrats to support him in addition to every Senate Republican.

However, following the announcement of Gorsuch's bid for the Supreme Court, Trump signaled to Senate Republicans to "go nuclear" if Democrats attempted to block the nomination. The apocalyptic phrasing of the Republican's gambit — and what it means — is apt, as it suggests the dramatic course of events that brought the legislature to the point of drastically altering the requirements for the lifetime justice position to the highest court in the country.

A Long Time Coming

The battle over the current Supreme Court appointment began when former President Barrack Obama initially nominated Merrick Garland, chief justice of the Washington D.C. Court of Appeals, to the position following Scalia's death in February 2016.

The nomination was roundly rejected by the Republican-controlled congress, who refused to even vote on Garland's nomination. Senate Majority Leader Mitch McConnell justified the refusal on the grounds of the "Biden Rule," an unofficial Senate practice initially invoked in a 1992 speech by then-Judiciary Committee Chairman Joe Biden. The speech was originally meant to convince George H.W. Bush, in the final six months of his term, to either wait to appoint a new justice if a vacancy occurred, or to appoint a moderate judge who would receive bipartisan support.

Even though the "Biden Rule" is not a binding restriction on when a president may or may not nominate a new justice and it was an opinion expressed while there was not an open seat on the court and Garland was previously praised by GOP Senators during his bid for his current appellate court position, Senate Republicans held firm in not moving to vote on the nomination until after the presidential election.

Needless to say, this did not sit well with Senate Democrats. And the partisan ill-will generated from the GOP's tactic has Republican's fearing a potential turnabout.

The Nuclear Option

The Republican anxiety over the immanent battle over Gorsuch has manifested into the potential use of the nuclear option: changing the amount of Senate votes required to approve a new Justice from 60 to a simple majority.

The nuclear option is not a new tactic. Democrats implemented the majority rule voting measure to confirm Obama's cabinet and judicial nominations, bypassing Republicans entirely. The change, however, also allowed Trump to appoint his cabinet solely on the majority Republican Senate.

Because of that reversal, "going nuclear" will most likely be a desperate last resort, although it has not been ruled out. Changing the requirements on the confirmation procedures of a Supreme Court nominee is a different beast than cabinet appointees by far, and Senate Republicans recognize that, despite Trump's caviler go-ahead.

For one, while cabinet members cycle out with each new administration, Supreme Court Justices can hold the position for decades. Justices also serve as a powerful check to executive and legislative power, dictating the scope and scale of American citizens' constitutional rights and civil liberties. The rulings made by the court generally have a deep and lasting impact on many foundational aspects of the country. Think Brown V. Board of Education, which deemed segregation unconstitutional; Roe v. Wade, which established the right to abortion services; Gideon v. Wainwright, which guaranteed the right to legal counsel; United States v. Nixon, which led to the the first and only impeachment of a U.S. president.

Forgoing the need for bipartisan approval of any Supreme Court nomination could create the potential for more politically polarizing figures to join the court with only the support of the sympathetic party. And, while the nuclear option will ensure Gorsuch's confirmation, it could also lead to a slew of Democratic appointments in the future.

Bitter Arbitration Ahead

With all that in mind, the coming Senate battle over Gorsuch's appointment is certain to be prolonged and heated. As Democrats weigh their political ideals against the prospect of seeming as obstructionist and Republicans gauge the short and long term impact of the nuclear option, no one is likely to come out of the process completely pleased.

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