Republicans can break a Supreme Court filibuster without using the so-called ‘nuclear option’

  We all know what the so-called “nuclear option” is so I will not go into it here but I will say I call it so-called because when Harry Reid and the Democrats used it they rebranded it as the “Constitutional option” but now it has been unbranded and is once again the “nuclear option” because the Republicans have the power to invoke it.

  Donald Trump has told Mitch McConnell to invoke the so-called nuclear option if the Democrats try to filibuster Neil Gorsuch but according to this story the Republicans can break the filibuster without it.

  Here is more:

Specifically, a majority may use Rule XIX (the two-speech rule) to shorten the amount of time members are able to filibuster. This rule prohibits any senator from giving more than two speeches on any one question during the same legislative day.

In the Senate’s rules, the terms “legislative day” and “calendar day” do not mean the same thing. A legislative day ends only when the Senate adjourns and therefore may last much longer than the 24 hours that define a calendar day. Indeed, one particularly long legislative day in 1980 lasted 162 calendar days, spanning a period from Jan. 3 until June 12.

Once a senator has given two speeches during the same legislative day, he or she may not speak again. The Senate votes when there are no members remaining on the floor who wish to and are allowed to speak. At that point, the support of a simple majority of the senators present and voting is sufficient for confirmation.

First, the Senate would proceed to consider the nomination. The Republican majority would then keep the Senate in the same legislative day and would strictly enforce the two-speech rule on any filibustering senators.

While Democrats could make procedural motions in protest, doing so in almost all cases would terminate the filibustering senator’s speech, thus hastening the moment at which the minority would have exhausted its ability to delay confirmation by filibustering via debate.

Strictly enforcing the two-speech rule is likely to break the filibuster before every Democrat uses the maximum number of speeches allotted under the rules. This is because continuing to filibuster in this context imposes significant costs on rank-and-file Democrats. To have even the chance of success requires each Democrat to hold the Senate floor for a prolonged period in an effort to wait out the Republicans.

The only way for them to prevail in the parliamentary showdown is for Republicans to relent and cease their efforts to overcome the filibuster.

  Well, that is interesting! Mitch McConnell seems to be hesitant to use the nuclear option despite Harry Reid’s precedent but this could be an option he is open to. The only question is whether or not he even knows this option exists.

malo periculosam libertatem quam quietum servitium