In a dramatic if entirely unsurprising series of moves today, Senate Republicans failed to break a Democratic filibuster against the confirmation of Neil Gorsuch as a Supreme Court Justice and proceeded to change Senate rules to make SCOTUS confirmations possible by a simple majority.
After 44 senators (all of them Democrats) voted against a cloture motion to end debate, the big moment arrived: Mitch McConnell offered a “point of order” suggesting that only 51 votes were needed to approve Gorsuch. Once the senator in the chair, Republican Deb Fisher of Nebraska, rejected that point of order under the Senate’s long-standing rules, McConnell appealed the ruling, and then on a strict party-line vote the Senate created new rules. In so doing, they effectively did away with the SCOTUS filibuster. A party-line vote to invoke cloture ensued, as the final shoe dropped.
Watch the moment when McConnell invoked the “nuclear option.”
Democrats will now insist on fully using the allotted 30 hours of debate available on all confirmations, which means Gorsuch won’t be confirmed until at least late Friday. So for the rest of this Congress, and most likely, for the rest of time, the filibuster will not be available for SCOTUS confirmation votes (or for the Executive and non-SCOTUS judicial confirmations on which Democrats “nuked” filibusters back in 2013).
This means the only remaining category of votes in the Senate that can be filibustered is the big one: regular legislation. Confirmations; non-binding resolutions; bills operating under the special provisions of the Congressional Budget Act or the Congressional Review Act — all these are now subject to majority votes that presumably the majority party in the Senate ought to be able to control if it maintains party discipline. If the Republicans controlling Congress and the White House today fail (as they have failed so far with respect to legislation repealing and replacing Obamacare) to get their agenda approved under such special procedures, pressure to kill the filibuster entirely could eventually gain momentum.
But for now, the “nuclear era” of Senate procedures has taken a limited step further restricting, but not abolishing, the filibuster.