Choice News

Friday Femorandum: Blowing Up the Senate

If you’re confused about what the “nuclear option” is, why Senate Republicans used it to ensure appointment for Trump Supreme Court nominee Neil Gorsuch, and why the Democrats may actually have won by losing, here are a few links that explain what the heck happened this week, why it matters to the future of the Senate and to the Democratic Party, and what advocates for equality and reproductive freedom stand to lose now that a far-right jurist and spiritual heir to Antonin Scalia is on the Court.

 upset the office frustrated worst michael scott GIFThe Hill has a blow-by-blow of what happened in the Senate yesterday, as Democrats struggled to convince Republicans not to eliminate the filibuster for Supreme Court appointments and Republicans insisted they had no choice. (Roll Call has the story on Democratic Sen. Jeff Merkley’s 15-plus-hour floor speech on Gorsuch, in which he outlined many of the Democrats’ objections to both Gorsuch and ending the Senate filibuster for Supreme Court nominees).

Basically, the Senate voted to change its own rules so that Supreme Court appointments only require a 51-vote majority, rather than the 60-vote majority required to break a filibuster—the so-called “nuclear option.” That change is permanent, and will apply to all future Supreme Court nominations—meaning that if the Democrats take control of the Senate at some future date, and a future Democratic President nominates his or her own Justice, the Republicans will not be able to block the nomination.

Republican Senators, the Hill explains, claim that Democrats oppose Gorsuch not because of his views or qualifications but because they oppose Trump. However, it’s obvious that the primary reasons Democrats oppose Gorsuch have little to do with the current President: Gorsuch won the nomination only because Republicans mounted an unconstitutional blockade against former President Obama’s nominee, Merrick Garland, for 11 months, and his views are in fact far outside the mainstream of judicial thought, and may be even more extreme than Scalia’s.

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The Washington Post and Politico both analyze the many ways in which the Gorsuch appointment could come back to bite Senate Republicans, electorally and in the long term, since the current political dynamic—in which the GOP controls the presidency as well as both houses of Congress—is historically rare and unlikely to last forever, or even long. “You could argue,” the Post says, “that Democrats will be even more motivated to block anything else Republicans want to do” now that the Republicans have ended the Supreme Court filibuster to approve Gorsuch. And they’ll be able to do it, too—because the Senate still has a filibuster for legislation, and not even the Republicans have indicated they want to eliminate that rule, the minority party can hold up legislation with as few as 41 votes.

And Politico notes that the Gorsuch appointment has also energized the Democratic base, which is already “warning Republicans of the potential midterm-election ramifications of jamming Gorsuch onto the court.”

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As for what Gorsuch will do now that he’s on the court… Think Progress has a speculative but totally plausible roundup of “9 Terrible Things Neil Gorsuch Could Do in his First Full Term on the Supreme Court.” They include: Taking up the Stormans v. Wiesman case, in which an Olympia pharmacy argued that it should be allowed to refuse emergency contraception because of its owners’ religious views (remember, Gorsuch was also the judge in the notorious Hobby Lobby case—more on that at Feminist Law Professors), and ruling that pharmacists can refuse to do their jobs based on their personal beliefs; overturning laws that bar discrimination based on gender or sexual orientation; and making it harder for women to sue their employers for sexual harassment or discrimination.

And, of course, there’s Roe. Rewire explains what will happen if the Supreme Court overturns Roe v. Wade, which is a distinct possibility that will become even more likely if Trump gets to nominate another virulently anti-choice Justice to the Court. In short, Rewire’s Carole Joffe writes, it’s likely that women will end up in jail for seeking abortions in states that will ban the procedure as soon as the Court gives them the opportunity. “When Donald Trump, shortly after his election, was asked by a journalist about what the possible overturning of Roe would mean for American women who sought abortions, he casually answered, ‘Well … they’ll have to go to another state,'” Joffe writes. “Yes, Mr. President, some will go to other states, but many others might go to jail.”



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