RUSH: In this case, everybody talks about the “nuclear option.” And maybe I should take time to explain and define what the nuclear option is. It gets thrown around. Before Harry Reid invoked the nuclear option, the rule is in the Senate you needed 60 votes to do anything. That rule goes back a long — it’s not an original Senate rule. It was added to the Senate after the founding of the country. But it’s been around for decades. It’s been accepted by both parties.
The Senate, compared to the House, is where things are supposed to slow down, by design, Founding Father design. The Founding Fathers were hell-bent to stop government action. The Constitution limited government. And that’s why people like Obama and Democrats call it a charter of negative liberties because it limits government. It’s an anti-government, pro-citizen document. And the founders wanted to make it hard. Gridlock was part of the design. The founders wanted to make it hard for laws to be passed. They wanted to make it hard for there to be restrictions on the freedom of the people.
The House was set up as the direct representatives of the people. Not direct democracy, but many more of them per district and in toto. They serve for two-year terms. The Senate was the equivalent of an aristocracy at the beginning. Senators were not even elected; they were appointed in the early days. Then that changed, and senators did become elected. But the Senate is designed to slow down out-of-control, madcap activity elsewhere in the legislative branch (i.e., in the House), and the 60-vote rule was part of that.
You have a hundred senators, but for anything to happen you need 60, which makes it really hard for anything to happen. Well, the Democrats, under Obama, never had 60 votes. For cabinet nominees you need 60 and for judicial nominees you need 60, until Harry Reid came along in 2013 and blew up the-60-vote rule, and this is called “the nuclear option,” and Harry Reid decreed — because he ran the Senate, Senate majority leader.
He ran it. He was able to ramrod rules changes through. So beginning in 2013, 60 votes were no longer need to affirm presidential appointments, nominations, or judges for every court except the Supreme Court. All you needed was 51 votes. This was so Obama could pack the federal judiciary, because the Democrats, what they can’t win at the ballot box, they enshrine in law in the judiciary. They place activist judges on courts all over the country who write law, who create law, not interpret it.
The Democrats long ago seized on this opportunity. When they couldn’t win legislatively, when they couldn’t get legislation passed, it didn’t matter; when controversy cases came up before the court… That’s why Roe v. Wade is the law of the land not because of legislation; the American people have never voted on it. The representatives of the people have never voted on it, and this is why I think it’s so contentious. You know, they have abortion restrictions in the U.K., but in the U.K., that came after a protracted debate involving the public.
And the elected representatives of the public in the House of Commons voted. So there wasn’t so much… Nine people wearing black robes decide something, and it becomes law — which is how Roe v. Wade became law — and you’re never gonna solve the controversy about it because the way things normally happen in this country via the elected representatives of the people didn’t happen. The Democrats have tried that and succeeded with numerous interpretations of law at various federal courts that have not been interpretations.
They have been, rather, Democrats… I’ll give you a great, great example. Supreme Court Chief Justice John Roberts took Obamacare — the mandate clause, the clause that mandated people buy insurance, which is unconstitutional. The chief justice decided he didn’t want to be the guy that declared unconstitutional something so important to a president, particularly the first black president. So he rewrote parts of Obamacare in his opinion, which turned the mandate into a tax, which then gave the federal government the right to do it!
That’s why everybody was so outraged by it.
Well, the left has done this and continues to do this with liberal judges all over the country. The U.S. Ninth Circuit Court of Appeals is the most famous place where this kind of thing happens. So in service to this, Harry Reid blows up the 60-vote requirement, which is called the nuclear option, and for every judicial nominee except Supreme Court nominees, 51 votes were needed to confirm. When he did this, a lot of Democrats said, “Mr. Reid, you better think about this.
“Because once you do this, you’re now opening the door for the Republicans to do the same thing when they end up back in charge here.” And Harry Reid said, “I’m not gonna be here when that happens ’cause I’m gonna retire. So screw it.” He wanted Obama to be able to pack the courts, and this is how he did it. So, in order to get any judicial nominee passed, 51 votes is all that was required in the Senate, not 60, beginning in 2013. Well, now here we come with the nomination of Judge Gorsuch.
Sixty votes are still needed because he is a Supreme Court nominee, and Harry Reid didn’t change that. But since Harry Reid changed it for everything else, Mitch McConnell, the Republican leader, can easily say, “You know what? I’m just gonna apply the nuclear option to Supreme Court nominees.” And the Democrats can caterwaul and whine and moan all they want. But there’s nothing they can do to stop that. Therefore, there’s nothing they can do to stop Gorsuch being confirmed. He’s going to be confirmed because there’s no way they can really stop him.
They can’t convince people he’s a bad guy, they can’t convince people he’s a bad judge, and they can’t convince people he doesn’t deserve to be there because they have already unanimously approved him at every judicial stop on his career. They, by voice vote, unanimously confirmed him to his current job and appellate judge in the tenth circuit out in Colorado. Six states are covered in that circuit. How do they then turn around and say, “Well, he didn’t have a record then! But that was ten years ago and he’s got a record now.”
Yeah, and it’s unassailable.
So the point is all the Republicans need without the nuclear option is eight Democrats to join them, and so far seven Democrats have said that they are willing to do so, that they do not want the nuclear option triggered. Seven Democrats. Many of them up for reelection in 2018 in red states where Trump won. Like Claire McCaskill is one. Missouri went for Trump by double digits. She’s up for reelection. There was no question Missouri wanted Trump, and if she goes against Trump on something like this, she is imperiling her own reelection.
Joe Manchin in West Virginia is another.
Right as we sit here today, there are seven Democrats willing to do whatever is necessary to avoid the nuclear option, which means joining the Republicans. So as we sit here, on paper (nobody’s actually voted) they’ve got 59 votes for the guy in the Senate. As we sit here today, on paper… Look, anything can change, but we’re speaking theoretically here. Trump today signaled that he’s okay with triggering the nuclear option if it’s necessary to get this guy confirmed and it’ll happen. So the Democrats, I think they’re making a huge tactical mistake by shooting everything they’ve got at the guy when it doesn’t change the balance of the court. He’s replacing Scalia.
RUSH: By the way, I should add, outgoing Senate minority leader Harry Reid said that he is confident that he has laid the groundwork for Democrats to nuke the filibuster for Supreme Court nominees if they win back the Senate in November. Remember, now, last fall everybody thought Hillary Clinton was going to win. They thought Hillary was going to win in a landslide. They thought Trump was gonna lose in a humiliating fashion. Dingy Harry was retiring.
Last October, he said that he was confident that he had laid the groundwork for the Democrats to nuke the filibuster for Supreme Court nominees as well if they won the Senate back last November. He was envisioning Hillary in the White House. He was envisioning Democrats controlling the Senate. He warned… Harry Reid, the outgoing Senate majority leader last October warned that if a Senate Republican minority tried to block Hillary’s Supreme Court nominee, that he was confident that the Democrats would not hesitate to change the filibuster rules again to include Supreme Court nominees.
The point is, he wouldn’t say that (that he was confident) unless he knew that Schumer was gonna pull the trigger and pull the nuclear option. The Democrats… The point is, the Democrats are acting like stuck pigs over the idea that the filibuster would be nuked — in other words, 60 votes done away with — to confirm any of Trump’s Supreme Court nominees. When Harry Reid had laid the groundwork for Schumer, his replacement, to do it anyway.
Now the Democrats are acting like it would be this great offense, great constitutional assault, be totally unacceptable for Republicans to do it. They were prepared to do it themselves! Once again, rank, smelly hypocrisy pouring out of every cell and orifice of the Democrat Party amoeba. Wait. An amoeba is only a single cell. I’ve just described their brain collectively! At any rate, look, I just wanted to get that explained, so when you hear nuclear option, no question what it is now.
RUSH: Back to the phones now to Anna in Tucson, Arizona. I’m glad you waited.
CALLER: Yes. Good afternoon, professor.
RUSH: Thank you. Lisa Murkowski from Alaska is the other senator. Interesting, they’re both women —
CALLER: Yeah, sadly.
RUSH: — who are not gonna vote for Betty DeVos. Anyway, Anna, what’s up? What’s happening?
CALLER: Okay, I have a question for you, professor.
CALLER: What happens if we invoke the nuclear option to make sure that the judge gets his approval, can we ever take it back?
RUSH: Well, it involves a rules change, and you could always try to change the rules and go back to 60 votes on confirmations, but nobody knows how that would go. But once you invoke it, it really does involve a rules change. The Senate majority leader can pretty much make it happen, but it’s almost like the horse is out of the barn.
CALLER: Yes. I wondered why they never tried to change the rules back when they knew that they didn’t have the majority anymore.
RUSH: Well, because you can’t change the rules when you’re not the majority.
CALLER: Right. But — oh, that’s true, we won the election, and we already had the majority.
RUSH: Right. And now they’re faced with living what they did to help themselves at the time. You know, people warned Harry Reid not to do it. Democrats said, “Dingy, don’t do this, because these guys are gonna eventually run the Senate again and then they’re gonna have this out of the way and they’re gonna be able to ramrod their nominees through.” And Dingy said (imitating Reid), “I don’t care, I’m not gonna be there when that happens. I’m gonna retire before that happens, and I want to get Obama all the judges he wants because that will take care of generations of liberalism in the courts.” And that’s what he did.
CALLER: Typical selfish Democrat.
RUSH: Selfish. Typical. Absolutely right.
CALLER: Yes. So what do you think is gonna happen? Do you think we would invoke it?
RUSH: I don’t think we want to. Now, Trump said today that he told — again, I don’t know if this is fake news or not. It’s reported in the media that Trump told McConnell to go nuclear, and that did happen? Okay. I didn’t mean gave him an order, but he signaled to McConnell that if that’s what it takes, do it, go nuclear.
My sense is, Anna, it really is, my sense is that McConnell would have no problem doing it, but if he can avoid it he would love to because I think there are senators who really have a reverence for the time-honored rules and traditions and don’t want to nuke ’em, which is what Dingy Harry did. And if they could get Gorsuch confirmed without doing it, I think that would be their first priority, and it looks like it might be possible because as the vice president said, there are already seven senators, seven Democrats who have announced that they will not filibuster Gorsuch, meaning they will not participate in an effort to deny him 60 votes.
And they are Richard Blumenthal, Democrat, Connecticut; Chris Coons, Democrat — they’re all Democrats — Delaware; Heidi Heitkamp of North Dakota; Joe Manchin of West Virginia; Claire McCaskill of Missouri; Jon Tester of Montana; and Dick Durbin of Illinois. All but Durbin face challenging reelections in ’18, and that’s one of the reasons why. That means with these seven, they only need one more Democrat to announce they won’t filibuster. And if the Republicans stay unified, which they will on this nominee, then McConnell won’t have go nuclear.