The same rule used to pass the Civil Rights Act could be used to confirm Neil Gorsuch
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Supreme Court nominations are always momentous. But with Democrats threatening to filibuster Senate consideration of Judge Neil Gorsuch, there is added drama to the whole event.

That, in itself is rather odd. There was no drama at all 11 years ago when he was nominated to serve on the 10th Circuit Court of Appeals. The Senate confirmed his nomination unanimously.

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That was not surprising. Then, as now, Neil Gorsuch was recognized as one of the most brilliant and qualified jurists of his generation. (He’s also charming and funny—personal traits appreciated by those who had to watch all 20-odd hours of his confirmation hearings.)

 

But this time around, leading Democrats insist that he is “too far outside the mainstream” to be confirmed—and they’ve spent weeks trying to get something negative to stick to him. 

All their objections have fallen flat. Failing to find substantive fault, they’ve been reduced to arguing, essentially, “But… but… Garland.” Even that hurt-feelings objection lacks punch because, if confirmed, Gorsuch won’t tip the ideological balance of the high court. It would simply preserve the balance of the last full court: a 4-4 split with the roving Justice Kennedy as swing vote.

Still, Senate Minority Leader Charles E. Schumer (D-N.Y.) insists that he will try to mount a filibuster.

If successful, this would be the first time in history a Supreme Court nominee fell to the filibuster along partisan lines. #WeNeedNine? Apparently not so much—at least, not when it’s a Republican doing the nominating.

So, what means do Republicans have to confirm this superbly qualified judge? Media reports suggest that Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellLindsey Graham: Police need 'to take a firm line' with Sept. 18 rally attendees Manchin keeps Washington guessing on what he wants CEOs urge Congress to raise debt limit or risk 'avoidable crisis' MORE (R-Ky.) may invoke “the nuclear option.” In other words, he may follow the lead of former Senate Majority Leader Harry ReidHarry Mason ReidDemocrats say Biden must get more involved in budget fight Biden looks to climate to sell economic agenda Justice Breyer issues warning on remaking Supreme Court: 'What goes around comes around' MORE (D-Nev.) and eliminate the filibuster for the last category of judicial nominees – the Supreme Court.

However, that’s not the only option available to those seeking to get a vote on the nomination. Existing Senate rules provide another way to overcome a filibuster—without going nuclear.

Nestled in the first paragraph of Senate Rule XIX is the two-speech rule. If invoked, it would allow Senators to speak no more than twice on a single question in a single legislative day—and a legislative day is not restricted to 24 hours. Once the maximum number of speeches is reached under this rule, the Senate can proceed to vote on the pertinent question, and at a majority threshold.

The two-speech rule thus could break a filibuster on Gorsuch, and allow the Senate to confirm him with a simple majority.

While arcane, the two-speech rule has been used to great effect before. It was referenced and threatened – though ultimately not invoked – in the confirmation battles over Abe Fortas’ nomination to the Supreme Court and Stephen Breyer’s nomination to the 1st Circuit Court of Appeals. Most famously, the two-speech rule was used to pass the Civil Rights Act in 1964. 

It’s a proven, effective strategy—so what’s the objection to using it? 

A recent BuzzFeed article cited a Republican leadership aide throwing cold water on the two-speech rule option. It could “take up significant time,” he said. “Members….would have to be constantly on call, on days, nights and weekends.”

To summarize his objections: “It’s hard. We might have to work nights.”

Yes, it’s true: enforcing Senate rules to the letter can take work. And members of the majority would need to be on call on short notice, possibly overnight or on the weekend, to ensure that the procedural tactic was successful. (On the other hand, my colleague, James Wallner, has outlined ways in which the majority could make it easier on themselves.)

However, if employed correctly, the two-speech rule will bring inevitable defeat to a minority filibuster – and inevitable victory to a majority that has the will to stick it out.

Gorsuch will make an excellent Supreme Court justice. Should Senate Republicans endeavor to do the heavy lifting, the two-speech rule offers a clear pathway to confirmation. Yes, it would require will and effort. But the big things always do, and securing a seat for Neil Gorsuch on the highest court in land is, at a minimum, worth working a few nights.

Rachel Bovard is the director of policy services for The Heritage Foundation, and a former policy director for the Senate Steering Committee.


The views expressed by contributors are their own and are not the views of The Hill.