5 Reasons to Save the 60-Vote Threshold for Supreme Court Nominees

A vote for the nuclear option is a vote for a Supreme Court that favors the wealthy and powerful.

By Michele Jawando and Billy Corriher

Senate Republicans are threatening to detonate what’s known as the “nuclear option” — a drastic change to historic Senate rules — just to get President Donald Trump’s Supreme Court nominee, Justice Neil Gorsuch, confirmed. If the Senate goes nuclear, it could end the rule that requires 60 votes to move forward on Supreme Court nominees. This would allow the Senate to confirm Judge Gorsuch, an ideologue who will likely limit the rights of workers, women, and the LGBTQ community, for a lifetime seat on the Court.

Here are five reasons why the Senate should maintain its 60-vote threshold for Supreme Court nominees:

1. The Senate has always protected the rights of the minority party, which has led to a more deliberative, bipartisan body than the House of Representatives.

The 60-vote threshold ensures that the Senate’s decisions are made on a bipartisan basis. By giving less populated states such as Idaho the same number of senators as more populated states such as California, the Senate already skews representation, and ending this threshold would allow a bare majority of these senators to confirm lifetime appointments to the highest court in the land. Every Supreme Court justice in the last 125 years, with the exception of Justice Clarence Thomas, has received the support of three-fifths of the Senate.

In recent months, several Republican senators have warned of the potential consequences if the rules are changed. Sen. Lamar Alexander (R-TN) said, “I think most Republicans understand that the Senate is not an institution to impose the majority’s will on the country. It’s the one institution in the country that’s capable of developing consensus.” Meanwhile, Sen. Orrin Hatch (R-Utah) called the 60-vote threshold the “only way” to protect the rights of the minority party, and has also said that “if we didn’t have the filibuster the minority would be nothing in this country.”

2. Judge Gorsuch’s record suggests he would rule for corporations and against the rights of workers and consumers.

Judge Gorsuch has consistently ruled against workers in employment discrimination and other cases. His confirmation would mean a return to the 5–4 conservative majority that included the late Justice Antonin Scalia. This 5-justice majority consistently ruled in favor of big business and against American workers and consumers. These rulings effectively cut off access to the courts by making it harder to bring lawsuits against corporations whose conduct harms others.

3. A Supreme Court that includes Judge Gorsuch could erode the few remaining limits on money in politics.

In recent years, the Supreme Court has struck down laws that limit money in politics, including the ban on corporate spending in elections that was struck down in Citizens United. Judge Gorsuch has suggested that campaign finance restrictions should be subject to “strict scrutiny,” a level of judicial review reserved for fundamental rights such as the right to be free from discrimination on the basis of race or gender. Under this level of judicial review, judges would be more likely to rule that limits on campaign contributions are unconstitutional.

4. Judge Gorsuch would limit the rights of LGBTQ people.

The Seventh U.S. Circuit Court of Appeals recently issued a ruling that illustrates what’s at stake for the LGBTQ community if Gorsuch is confirmed. The decision, joined by Republican and Democratic appointees, found that the federal Civil Rights Act’s prohibition on discrimination on the basis of sex includes discrimination against LGBT people. Since other circuits have reached a different conclusion, the Supreme Court is likely to hear the case.

During his confirmation hearing, Judge Gorsuch refused to tell Senators whether he believed that LGBTQ people should be protected as a class of people by the Constitution. In 2005, however, Judge Gorsuch did criticize liberals for trying to enact a “social agenda” through the courts, listing marriage equality as an example.

5. Confirming Judge Gorsuch would be a vote against the legal rights of women and people with disabilities.

The Supreme Court’s ruling in Hobby Lobby recognized a right to religious freedom for for-profit corporations. Judge Gorsuch also came to the same conclusion, arguing that for-profits’ religious freedom claims could trump the rights of female employees to have insurance that covers contraception, which the Affordable Care Act required. Gorsuch has also faced criticism for his dissents in favor of employers in sexual harassment cases.

The Bazelon Center, which advocates for people with mental disabilities, issued a report concluding that Judge Gorsuch “has frequently written and joined opinions in employment, education, and other cases that limit federal protections for people with disabilities.” During Judge Gorsuch’s confirmation hearing, the Supreme Court issued a unanimous ruling that rejected Gorsuch’s interpretation of the Individuals with Disabilities in Education Act, a law that provides critical protections to students with disabilities. The opinion by conservative Chief Justice John Roberts said that students who only get the education required under Judge Gorsuch’s standard “can hardly be said to have been offered an education at all.”

At this moment in American politics, we need consensus. But the Senate majority leader wants to inject more partisanship in the Supreme Court confirmation process.

A vote for the nuclear option is a vote against the rights of workers and historically marginalized groups, and is a vote for a view of the Constitution that favors the wealthy and powerful. Changing the rules to confirm Judge Gorsuch is a vote against the values and principles that Americans cherish.

Michele Jawando (@MicheleJawando) is the Vice President for Legal Progress at the Center for American Progress. Billy Corriher (@BillyCorriher) is the Deputy Director of Legal Progress.