The Senate Must Avoid the Nuclear Option

If we go down this road, we will undermine the minority’s ability to check this Administration — and all those to follow.

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Senators Henry Clay, Daniel Webster, and John C. Calhoun debate the Compromise of 1850. (Drawn by Peter F. Rothermel)

Two hundred and thirty years later, that experiment has exceeded their wildest hopes.

In no small part, because generation after generation of Americans, including elected officials and including members of this body, understood that our government is far more than the sum of our laws or the letter of our Constitution.

Our system is also held together by rules, written and unwritten, that help elected officials resolve their differences without unleashing a downward spiral of recrimination that could endanger the Republic itself.

They understood, for example, that while civility, compromise, and cooperation are not required by law, laws cannot pass without them.

They recognized that while the majority may have the power to rule on its own, it should not trample over the minority.

They understood that, at some point, partisanship must give way to patriotism.

Through our history, including moments far more difficult than our own, these principles were the quiet guardrails of our politics, keeping dysfunction at bay. But in recent years, we have begun tearing these guardrails down. And in doing so, we risk the revenge of history by ignoring it.

There is a tendency around here to think our problems are unique and that the consequences of our actions are fleeting.

2400 years ago, the ancient city of Corcyra was consumed by civil war. According to Thucydides, both sides spared “no means in their struggles for ascendancy… in their acts of vengeance they went to even greater lengths, not stopping at what justice or the good of the state demanded, but making the party caprice of the moment their only standard.”

As the civil war intensified, both sides struggled to end it, because “there was neither promise to be depended upon, nor oath that could command respect; but all parties rather dwelling in their calculations upon the hopelessness of a permanent state of things, were more intent upon self-defense than capable of confidence.”

The Founders read Thucydides. They knew that once factions crossed the line, once they violated tradition in an escalating retaliation, it becomes very hard to turn back.

James Madison in particular understood the peril of factions. He wrote how people with “A zeal for different opinions concerning religion, concerning government, and many other points” have “divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to cooperate for their common good.”

They also feared that, once in power, majority factions would abuse that power to run roughshod over the minority. In a country with such diverse beliefs and traditions, doing so could threaten the very stability of the Republic.

For these reasons, the Founders embedded checks in the design of our government.

That is why, in the Senate, we represent entire states, not gerrymandered districts. Colorado, for example, has roughly equal numbers of Democrats, Republicans, and Independents.

That is why the Senate gives smaller states disproportionate representation, with Colorado receiving the same votes as California.

And that is why traditions of the Senate hand the minority tools to encourage consensus between political parties.

The filibuster is one of those tools, and it has been used for good and for ill throughout our history. By requiring the consent of 60 senators to proceed on key votes, the filibuster ensures that the legislation we pass and the nominations we approve reflect at least a modest level of consensus.

The filibuster is meant as a tool of last resort, but in recent years, it has become yet another weapon in our endless partisan warfare.

During just the first five years of President Obama’s administration, Republicans used the filibuster 79 times against his nominees.

That was my first term in the Senate. And at the time, I saw the filibuster the way many Americans still do: as an undemocratic tool for delay and gridlock. So in 2013, after unprecedented Republican obstruction of highly-qualified nominees, I voted with a Democratic majority to end the 60-vote threshold for most presidential nominations — invoking what’s known as the “nuclear option.”

Although Republicans were wrong to abuse the rules, Democrats were wrong to change them. Even as we changed the rules, however, we made a point to retain the filibuster for Supreme Court nominees, recognizing their profound influence on our country’s laws.

Last year, dysfunction in the Senate reached a new low when Senator McConnell denied Judge Merrick Garland, President Obama’s nominee for the vacancy left by the late Justice Scalia, the courtesy of even a hearing — to say nothing of a vote.

That was an offense to the traditions of this body and our Constitution.

I recognize that it is impossible to separate politics from the courts. At the same time, we must not allow the judiciary — and especially the Supreme Court — to become a pure extension of our partisan elections and politics.

Alexander Hamilton wrote that “liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”

Continuing, he wrote that because of “the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches.”

Today, some of my colleagues plan to filibuster President Trump’s Supreme Court nominee, Judge Neil Gorsuch.

The Republican leadership has responded by threatening to invoke the “nuclear option,” which would eliminate for all time the 60-vote threshold for Supreme Court nominees and allow them to confirm Judge Gorsuch with the narrowest partisan majority.

This is precisely the outcome our Founders feared, when lifetime appointments to our highest court, which touches every aspect of American life, become just another partisan exercise.

We must not go down this road.

This President may have several more opportunities to nominate a Supreme Court Justice during his term. If that happens, Republicans would face enormous pressure to nominate an extreme candidate, knowing they could confirm them without a single Democratic vote, indeed that they would be expected to confirm them without a single Democratic vote.

To those who believe President Trump could not nominate someone more outside the mainstream than Judge Gorsuch, just look at some of the President’s cabinet nominees — some of whom are among the least qualified and most radical ever confirmed by this body (by the way, under the new 2013 rules allowing confirmation with just 51 votes).

Not to put too fine a point on it, but if you don’t like the ring of Justice Gorsuch, how do you feel about Justice Pruitt (who doesn’t believe in climate change); or Justice Sessions (who has a record of opposing civil rights and equality). If we continue down this path, both could be confirmed with a slim majority vote.

In particular, I believe he has far too much confidence in the original meaning of words in legislation, or for that matter, even in the Constitution.

Having worked on legislation for nearly a decade now, I know these words — so often written in the dead of night, in meager attempts to let everybody go home — cannot be explained without reference to legislative context or human history or lawmakers’ intent. Sometimes a comma really does end up in the wrong place.

Although I have reservations about his approach to the law, I do not have reservations about his qualifications for the Court. He is a committed and honorable public servant, and that is why so many members of the Colorado bar and bench support his nomination.

Qualified nominees deserve an up or down vote. That is the tradition of this body. How members vote is a matter of conscience for each of us.

For all of these reasons — and in the hopes of preserving the minority’s voice in our government — I will oppose efforts to filibuster this nomination.

If we go down this road, we will undermine the minority’s ability to check this Administration — and all those to follow.

Today we have a President who does not appreciate the separation of powers and who has made unprecedented attacks on the free press and the judiciary. The country needs an empowered Senate minority right now, more than ever. And more than that, the country needs a Senate that can forge consensus about our future, rather than carrying on the bitter and tired divisions of the past.

I know it can be hard — I’ve been here long enough to know — it can be hard for both sides to see beyond the partisan tactics of the moment. Lawmakers will never lack an excuse to break with custom or change the rules to their benefit. They may even argue, as some recently have, that the damage is not that bad, that everything can continue as normal.

The Roman Republic endured for nearly 500 years, but it was brought low by events that should feel eerily familiar to people in this chamber.

In 60 BCE, the Roman Senate was consumed by a controversial land reform initiative. One side was led by a senator name Cato. The other, Julius Caesar.

To stop land reform and other initiatives, Cato employed delay tactics similar to the filibuster — freezing the Roman Senate for months. While the action was within the rules, it broke with Senate custom. Caesar vowed to press forward. Cato’s allies responded by declaring a religious holiday for the rest of the legislative calendar, stopping the reform effort in its tracks.

In a further break with precedent, Caesar bypassed the Senate and took the bill to the People’s Assembly for approval. Furious, Cato’s allies boycotted the government and postponed the next election by three months.

While Caesar eventually triumphed, the incident intensified a cascade of recrimination that the Roman Senate struggled to escape.

Legislative strikes, delayed elections, and — believe it or not — shut downs grew in frequency. Manufactured crises became routine. As the dysfunction grew, the Senate became increasingly irrelevant as power flowed to Caesar and military leaders.

Even as senators recognized the danger, they failed to correct course. Too much damage had been done. Centuries-long custom had been broken. Trust among Senators had eroded. Confidence in the body collapsed.

As dysfunction rose, so did popular calls for a strongman to clean up the mess. Within a decade, Caesar crossed the Rubicon with an army, and the Republic soon gave way to tyranny.

It would take over 1800 years for another large republic to emerge — this time in the United States of America.

Mr. President, unlike us, our Founders knew this history as well as their own. But they could not guarantee that we would heed its lessons. That is why they built institutions to check the worst impulses of faction to help us navigate profoundly consequential decisions — like confirmations for the Supreme Court — without tearing each other apart.

But the Founders also placed their faith in the willingness of elected officials to resist the lure of narrow interests or passions of the moment and rise up to defend our institutions and our traditions — especially in hard times.

We must not betray their faith. With each escalating crisis, we damage not just the Senate, but the Republic. The Rubicon is far, but with each rule and custom broken, we draw nearer.

Mr. President, choices on both sides have brought us to this low point. But I have faith that we can choose and we should choose a different path. We can choose to step back from the brink, to find common ground, to fulfill our obligation in the time we’re serving here, and to sustain the American experiment for centuries to come.

Mr. President, I yield the floor.

Remarks delivered on the Senate floor on April 4, 2017, regarding Judge Neil Gorsuch’s nomination to the U.S. Supreme Court.

Written by

U.S. Senator for Colorado

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