SCOTUS Hears ESA Overreach Case on Dusky Gopher Frog in Louisiana

SCOTUS heard oral arguments for Weyerhaeuser v. USFWS, which has cost the plaintiffs $34M for a frog not living in LA.

On Monday, the Supreme Court of the United States (SCOTUS) heard its first cases for the upcoming judicial session. Center stage is the dusky gopher frog, or Mississippi dusky gopher frog, that is causing immense headache for one Louisiana man who leases his land to Weyerhaeuser Company, one of the world’s largest timber companies.

Weyerhaeuser was started in 1900 and is one of the world’s renowned and largest private owners of timberlands. They reportedly control 12.4 million acres of timberland in the U.S. and 14 millions acres under long-term leases in Canada. They also focus on manufacturing wood products.

The case Weyerhaeuser vs. USFWS would have been the first case Brett Kavanaugh heard had his nomination gone through the Senate, but alas, hopefully we’ll get that on Friday.

The plaintiffs, Edward Poitevent and Weyerhaeuser Company, are having their case heard before SCOTUS because Unit 1, 1,500 acres of private land they own, has been deemed critical habitat for the frog in question, although the frog hasn’t been found there in 50 years and is currently located 70 miles away in Mississippi.

The question over this case is this: can USFWS designate critical habitat when said property is neither habitat nor essential to species conservation? SCOTUS Blog describes it as follows:

This case will rule whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation; and (2) whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.

Weyerhaeuser was first heard in the local district court and then the U.S. Court of Appeals for the Fifth Circuit, where it was voted down. Here’s a synopsis of the case, as detailed by Pacific Legal Foundation:

Edward Poitevent’s, the plaintiff, family has owned land in Louisiana since the end of the Civil War. The land in St. Tammany Parish is rich in lumber and is the major source of his family’s livelihood. In 1953, after nearly losing their property during the Great Depression, the Poitevent family signed a 90-year lease which has allowed the family to keep the land. And in the 1990s, Weyerhaeuser Company acquired the Poitevents’ lease for its timber operations.


Edward considers the land as much more than an investment. “It’s like a piece of family silver or a treasured piece of art. It’s a family asset and I’d love to be able to pass it on to my own children,” he says.


But in 2012, under cover of the Endangered Species Act, the U.S. Fish and Wildlife Service declared more than 1,500 acres of property owned by Edward and Weyerhaeuser a critical habitat for the dusky gopher frog.


No one in the entire state of Louisiana has spotted the frog in 50 years. The only place the frog is found today is nearly 70 miles away from Edward’s property in Mississippi. In fact, the critter’s official name was the Mississippi Gopher Frog until 2012—right about the time bureaucrats arbitrarily decided that if Edward drastically overhauled his property—at his own expense—the frog might be able to survive in Louisiana too.*


By locking down land on behalf of a frog that doesn’t live there, the feds froze an estimated $34 million in economic activity. Nor can Edward use his own land for anything else in the future—a literal death knell to his property rights.


The U.S. Fish and Wildlife Service implemented Section 4(B)(2) to better clarify the designation of critical habitats on August 28, 2013:


The Secretary shall designate critical habitat, and make revisions thereto, under subsection (a)(3) on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if [s]he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless [s]he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.


Here’s how the Fish and Wildlife Service classifies “critical habitat” designations:


The term “critical habitat” for a threatened or endangered species means— (i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. (B) Critical habitat may be established for those species now listed as threatened or endangered species for which no critical habitat has heretofore been established as set forth in subparagraph (A) of this paragraph. (C) Except in those circumstances determined by the Secretary, critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species.


The libertarian CATO Institute filed brief in support of Poitevent, regarding Unit 1 and the ESA’s complete disregard for the Commerce Clause:


…the FWS interpretation of the ESA is unreasonable and that this aggrandizement of federal power to regulate property goes beyond constitutional limits. The idea that land that is uninhabitable for a species is nevertheless “essential” to its survival is unmoored from even government logic.Put simply, the FWS effectively rewrote the ESA in a way Congress never authorized — and could not constitutionally permit. Even if one accepts that the ESA fits into Congress’s power to regulate interstate commerce — in which case critical-habitat designation is undoubtedly a necessary part of the scheme — that power has limits. Mere existence of land does not constitute “economic activity” under the Commerce Clause; if it did, all land in the United States would be subject to federal jurisdiction (as is the case in federal enclaves). Likewise, the regulation here doesn’t fit into the Necessary and Proper Clause. It’s not necessary because Unit 1 plays no role in the frog’s conservation; it’s not proper because it infringes on state sovereignty over land-use regulation.


Louisiana’s Attorney General also praised the case:


It’ll be interesting to see how this case will be ruled by SCOTUS, which has already proven to be divided over the issue—with the more conservative justices sympathizing with the plaintiffs and vice versa.


To get a full recap of this issue, check out Episode 5 of my podcast District of Conservation. We’ll keep you posted here at The Resurgent on whether or not it’ll be argued before the highest court in the land.

Despite Gorsuch, is SCOTUS Backtracking on the Second Amendment?

On June 26, 2017, the SCOTUS declined certiorari to Peruta v. California, a case that met all the criteria for a review.

Why? After Heller and McDonald, this seemed like the perfect opportunity to clarify themselves, but during the entire legal process, it seemed the courts were acting as though neither were applicable.

The following article is a bit scholarly, but it explains what may be behind this phenomenon. It’s worth bookmarking in your browser for future reference. It is reprinted here with permission of the author, Mike Rana, who publishes his own blog,



Generally, the high court uses a few criteria to determine what to accept: When there are multiple Courts of Appeal in conflict, multiple state Supreme Courts in conflict, and important federal questions to be answered.  Another consideration is how the case at hand will impact national policy.

The Second Amendment was included in the Bill of Rights at ratification.  In this nation’s 228+ year history, the justices have only been confronted twice with it.  Heller affirmed the civilian right to bear arms for self-defense in the home, but only as applied to the federal government.  McDonald affirmed Heller and incorporated that right to the states, forbidding any city or state from completely banning firearms.

In his and Justice Thomas’ dissent, they said:

“Even if other Members of the Court do not agree that the Second Amendment likely protects a right to public carry, the time has come for the Court to answer this important question definitively. Twenty-six States have asked us to resolve the question presented, see Brief for Alabama et al. as Amici Curiae, and the lower courts have fully vetted the issue. At least four other Courts of Appeals and three state courts of last resort have decided cases regarding the ability of States to regulate the public carry of firearms. Those decisions (plus the ones below) have produced thorough opinions on both sides of the issue.”

See Drake, 724 F. 3d 426, cert. denied sub nom. Drake v. Jerejian, 572 U. S. ___ (2014); 724 F. 3d, at 440 (Hardiman, J., dissenting); Woollard v. Gallagher, 712 F. 3d 865 (CA4), cert. denied, 571 U. S. ___ (2013); Kachalsky v. County of Westchester, 701 F. 3d 81 (CA2 2012), cert. denied sub nom. Kachalsky v. Cacace, 569 U. S. ___ (2013); Madigan, 702 F. 3d 933; id., at 943 (Williams, J., dissenting); Commonwealth v. Gouse, 461 Mass. 787, 800–802, 965 N. E. 2d 774, 785–786 (2012); Williams v. State, 417 Md. 479, 496, 10 A. 3d 1167, 1177 (2011); Mack v. United States, 6 A. 3d 1224, 1236 (D. C. 2010).

The Court’s decision to deny certiorari in this case reflects a distressing trend: the treatment of the Second Amendment as a disfavored right. See Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (Thomas, J., dissenting from denial of certiorari) (slip op., at 6) (“The Court’s refusal to review a decision that flouts two of our Second Amendment precedents stands in marked contrast to the Court’s willingness to summarily reverse courts that disregard our other constitutional decisions”); Jackson v. City and County of San Francisco, 576 U. S. ___, ___ (2015) (same). The Constitution does not rank certain rights above others, and I do not think this Court should impose such a hierarchy by selectively enforcing its preferred rights. Id., at ___ (slip op., at 1) (“ Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document”).

The Court has not heard arguments in a Second Amendment case in over seven years—since March 2, 2010, in McDonald v. Chicago, 561 U. S. 742. Since that time, we have heard arguments in roughly 35 Second Amendment-related cases where the question presented turned on the meaning of the First Amendment, and 25 cases that turned on the meaning of the Fourth Amendment. This discrepancy is inexcusable, especially given how much less developed our jurisprudence is with respect to the Second Amendment.”

While one could easily write a book on how the judicial branch has cherry-picked from the Second Amendment, but has vigorously protected other fundamental rights (and unconstitutionally created and gone to lengths to defend others) it’s not hard to see how gun rights seem to be the one that legislatures and courts want to ignore.

I offer three hypotheses on why the Court decided to deny certiorari:


Where the SCOTUS is the court of last resort for the nation and has a pint-sized docket compared to the breadth of petitions it receives, typically they only take major things.  The only exception to this rule might be Bush v. Gore.

The issue at hand in Peruta is whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

Precedent has only held that cities and states cannot infringe on the right to bear arms, but as Heller and McDonald tell us, states are allowed to enact reasonable regulations on that right.  As it is right now, five states have banned open carry:  California, Florida, Illinois, New York, and South Carolina, but allow concealed carry with a permit.

For those that want a popsicle headache, the Peterson v. Martinez decision ruled the following:

  • Concealed carry is not a protected right under the Second Amendment due to 19th century case law that has long prohibited the practice.
  • Mr. Peterson’s claim that he’s disarmed when traveling to another state because his permit is not recognized isn’t unconstitutional because the state he traveled to at the time of the claim allowed open carry.
  • Even if Second Amendment case law yielded to protecting the right to concealed carry, the state has an interest in public safety by regulating the issuance of permits on the grounds of legal suitability (I.E. not prohibited by state or federal law).


The Court has had no issue bringing the iron fist to campus administrators who create free speech policies against disagreeable views. The same court has upheld offensive speech such as flag burning and Westboro without flinching, but they seem to be allergic to a piece of metal on the hip.

Other notable rulings include:

The Court has ruled that religious employers can receive an exemption from the healthcare mandate.

The Court has afforded wide latitude to the press in terms of what they publish.

The Court has ruled that abortion is a fundamental right as it applies to privacy and medical treatment.

The Court has ruled on things relating to cellphone searches, vehicle searches, not concocting reasons to stop someone just to pry further, and prohibiting a traffic stop from lasting longer than is reasonable to enforce the violation the person committed.

Multiple lower courts have ruled repeatedly that campus administrators cannot ban political speech on the grounds of a divergent viewpoint.

The Court has ruled that marriage is a fundamental right due to free association and the freedom of choice.

The Court has ruled that speech construed as offensive speech is still free speech.

You can see how these rulings could impact Second Amendment rights, if the court were intellectually consistent. While the Courts haven’t defended gun rights as vigorously as they have free speech, religious freedom, search and seizure, due process, and going as far as equal protection challenges, they have cordially taken cases involving each.

Although Peterson was decided in 2013, the legal framework hasn’t changed.  Concealed carry is still NOT considered a constitutionally-protected form of carry in SCOTUS case law. While the right to carry has been ruled acceptable, it hasn’t been ruled protected.

Some state supreme courts since Peterson have acknowledged, much like Justice Gorsuch did, that the right to carry is inferred from the right to keep and bear; the presence of inconsistent acknowledgement in other courts made Peruta a good candidate for a hearing, and this latest dismissal complicates policy.

For instance:

  • The Constitution protects the right to bear arms, but only with weapons that were in use at the time of the amendment’s passing.
  • The right to bear arms is a fundamental right, but public safety concerns allow the state to regulate it.
  • Citizens cannot carry firearms into government buildings because on the grounds that all should feel safe accessing.
  • Permits are a constitutional exercise of the government’s compelling interest of ensuring public safety and ensuring that prohibited persons aren’t able to purchase firearms.
  • Since a state allows one form of carry, it’s not a total infringement, as state regulations are reasonable for public safety.
  • States aren’t required to recognize each other’s permits on the grounds that one state’s policies and training requirements may be inferior to another’s.


Imagine if your right to petition your state representative required a permit costing $100 in Florida, and was banned unless you held an affiliation with an organization in Washington?

Imagine if your right to be free from search and seizure was fully protected in Montana, but didn’t apply to computers or cellphones in Nebraska?

Imagine if the Boston Globe criticized the governor of Massachusetts and it was protected speech, but the Los Angeles Times mocked California’s governor’s policy on climate change, and the blogger or journalist was charged with a hate crime?

I can’t think of a court in the nation that would tolerate or uphold any of those scenarios since each one is widely understood to be a protected right. Ironically, the Court itself acknowledges that gun rights aren’t an inferior second-class right, yet, here we are.

Given the case law behind our disfavored right, state legislatures have had to do the brunt of the work.  Considering twelve states have enacted permit-less carry with a dozen more with proposals out there, three-quarters of the states allow open carry without a permit, only five states outright banning open carry, and with each successive legislative session, more states are dismantling gun control schemes, what more would the courts need to do considering they’re not authorized or empowered by the Constitution to make law.

While the case law is correct in that no right is absolute, there is no enumerated fundamental right more cherry picked than the right to bear arms – something that needs to change.


Majority Back Trump’s So-called Travel Ban

Politico reports that its new POLITICO/Morning Consult poll finds “a clear majority of voters support President Donald Trump’s” so-called travel ban.

The poll didn’t actually ask about President Trump’s January 27, 2017 Executive Order Protecting Nation From Foreign Terrorist Entry Into the United States or the President’s March 6, 2017-revised version of the order, which narrowed the scope of his original order. Instead the poll asked about the new guidelines issued by the State Department to implement last week’s Supreme Court ruling which lifted parts of lower court injunctions blocking Trump’s Executive Order:

As you may know, the U.S. Department of State recently outlined new guidelines which say visa applicants from six predominately Muslim countries must prove a close family relationship with a U.S. resident in order to enter the country. Knowing this, do you support or oppose these new guidelines?

Sixty percent of voters say they support the guidelines, and only 28 percent oppose them.

There was the usual partisan divide among the respondents. Among Republicans 84 percent support the guidelines, while just 9 percent oppose them. The policy is also supported by Independent voters — 56 percent support it, compared to 30 percent who oppose it. Democrats are split on the issue, with 41 percent supporting the guidelines and 46 percent opposing them.

Politico notes that an Associated Press-NORC Center poll last month, before the Supreme Court’s decision, found that 57-percent of Americans thought courts were acting rightly in blocking the travel ban.

The POLITICO/Morning Consult poll was conducted June 29-30, and has a margin of error of plus or minus 2 percent.

It’s amazing how the media constantly refers to “applicants from six predominately Muslim countries” in its continuing effort to make it seem like a Muslim ban. They do this even though the suspect countries are identified in the Executive orders as “aliens from countries referred to in section 217(a)(12) of the INA [Immigration and Nationality Act], 8 U.S.C. 1187(a)(12).” The list of countries referred to there was put together by the Obama Administration.

Christian Baker Discusses Harassment, Death Threats as SCOTUS Debate Nears

On Monday, the Supreme Court ended its most recent session by revealing that it will determine whether a Colorado baker discriminated against a gay couple when he declined to bake a cake for their 2012 wedding in its next term.

The controversial case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, gained national attention after bakery owner Jack Phillips declined to make a wedding cake two gay men, citing his Christian beliefs. Phillips said he didn’t refuse the couple service and offered to sell them anything in the store, but he would not actively participate in the couple’s wedding by making a cake specifically for the occasion.

With the SCOTUS is set to debate the balance between religious liberty and equal treatment under the law, Phillips spoke with Fox News about the years of harassment and threats he, his family, and his workers have faced as a result of the incident.

Phillips has grown somewhat accustomed to the lost business, hate-filled online reviews, and nasty phone calls he has faced, but it still bothers him when the vitriol meant for him is—intentionally or not—passed on to others.

“In all of this, the threats against me or disparaging comments, the worst part is that I have to answer the phone so they’re not threatening my wife or my daughter when they pick it up,” Phillips said. “They don’t wait to see who’s on the phone. You pick up the phone, they’re already talking.”

He recalls receiving two specific death threats—one involving his daughter—that were obviously troublesome, but one of the most hurtful moments came when a member of the Colorado Civil Rights Commission compared him to a Holocaust sympathizer.

“Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust,” Commissioner Diann Rice said in a brief. “I mean, we can list hundreds of situations where freedom of religion has been used to justify discrimination.”

The comments hit close to home for Phillips, whose father was severely injured in World War II, while part of a team that helped liberate a Nazi concentration camp.

“For her to compare standing for my faith and not making a cake to Hitler’s…

Read the full story at

SCOTUS Gives Christian Baker, & All Believers, Their Day In Court

George Orwell once said that “if you want a picture of the future, imagine a boot stamping on a human face – forever.” In a few months, the Supreme Court will let Christians know whether the future has arrived.

The Court just agreed to hear a case filed by Jack Phillips, who owns Masterpiece Cakeshop, a Denver-area bakery. As his attorneys explain, Phillips is not just a baker – he’s an artist:

[Phillips] cakes communicate the important celebratory themes of birthday parties, anniversaries, graduations, and weddings. His faith teaches him to serve and love everyone and he does. It also compels him to use his artistic talents to promote only messages that align with his religious beliefs.

Phillips’ faith trumps business:

He declines lucrative business by not creating goods that contain alcohol or cakes celebrating Halloween and other messages his faith prohibits, such as racism, atheism, and any marriage not between one man and one woman.

That last one won’t fly – not in Colorado, and not in an increasing number of other states, either.

State authorities penalized Phillips under Colorado’s “non-discrimination” statute after he declined the demands of a homosexual couple for a custom cake for their “wedding.” Those penalties include monetary sanctions, for starters. But that’s not all. Phillips’ employees must submit to “comprehensive training” on non-discrimination. The former Soviet Union might have closed its re-education camps, but Colorado’s are open for business.

In fact, the only real discrimination, and bigotry, in this case comes from the homosexual complainants and the government thugs doing their bidding. As Phillips’ attorneys note, Colorado gave a pass to three other bakeries that refused a Christian customer’s request for custom cakes that criticized same-sex marriage on religious grounds. Nor will the government penalize bakers who refuse to bake cakes “bearing a white-supremacist message for a member of the Aryan Nation” or an Islamic baker who refuses to make a cake denigrating the Koran.”

Bakers are free to decline any expression that they find offensive. Unless they’re Christian bakers. Or Christian florists. Or Christian videographers.  Or Christian farmers.

And if the Supreme Court rules against Phillips, you can add every other Christian to that list. The militant homosexuals who hauled Phillips into court did so by bypassing hundreds of Denver-area bakeries that would happily have taken their money. If Phillips loses, that tactic will be repeated in every state and with believers in every profession.

Archbishop Chaput’s maxim has been on full display in the Supreme Court’s gay-rights jurisprudence. In 1986, the Court reaffirmed two millennia of moral teachings and held that “there is no such thing as a fundamental right to commit homosexual sodomy.”

Evil preached tolerance and, in 2004, convinced the Supreme Court that there was such a right.

The judiciary’s decent into abomination has accelerated. Two years ago, the Supreme Court determined that James Madison’s Constitution required state governments to recognize sodomy as a foundation for marriage.

After Evil’s preaching of tolerance won the day, it began demanding conformity. The lower courts have complied and are ordering our brothers and sisters in Christ to facilitate gay weddings.

In a few months, we’ll learn whether the Supreme Court is cool with that.

The Alliance Defending Freedom, which is defending Phillips pro bono, produced a video showing Phillips’ quiet resolve in the face of tyranny:

This is what real resistance looks like – the kind Christ commanded of us for such a time as this.

We should pray for Phillips’ victory, of course. But even that will simply delay the inevitable. Decades ago, gay marriage was barely a blip on pollsters’ radar screens. Now, nearly two out of three Americans support gay marriage, so you don’t need to have read Daniel and Revelation to figure out where this is all headed. The mob always demands, sooner or later, that all of us go from tolerating to facilitating its abominations. Aaron caved when the mob demanded a golden calf. Jack Phillips stood his ground when it demanded a cake. Each of us needs to begin deciding which will be our role model for the day when the mob comes knocking on our door, which it surely will.

Obama Never Had This Trouble With His Pen

President Trump’s second attempt at banning immigration from six countries known to be tied to terror may be on its way to the Supreme Court. If (and it’s a big if) they agree to look at it at all.

After being shot down by both the 4th and 9th Circuit Court of Appeals, the only hope for one of Trump’s core promises–to stop the flow of terror into America–lies with the nine black-robed justices.

Actually, the Justice Department requested a fast track decision before the Supreme Court begins its three-month recess at the end of June. From Roll Call:

The government also filed an appeal of the decision by the U.S. Court of Appeals for the 4th Circuit, a slower path through the Supreme Court. The DOJ said that path would leave the case ready for oral arguments by the beginning of the next term in October. Only four justices need to agree to hear the appeal, which seems more likely given the high-profile nature of President Donald Trump’s executive order.

Though the press continues to call the executive order a “Muslim ban,” and both appeals court decisions take statements made by Trump during his campaign and other speeches into evidence to support this claim, the travel ban itself is fairly cut-and-dried.

In 2011, President Obama issued an executive order to ban “Entry of Aliens Subject to United Nations Security Council Travel Bans…” In its effect, Obama’s order banned aliens (as immigrants or non-immigrants) from the same countries Trump sought. No court struck this down, no university or state brought suit to enjoin Obama from enforcing his ban.

In fact, nobody complained at all.

It seems like Obama’s pen and phone were beyond question to most of the media and liberal institutions, but Trump’s are to be fought tooth and nail. The double standard imposed by liberal federal judges is appalling.

If the Supreme Court can accomplish anything, setting equal and consistent standards for legal standing and interpretation of executive authority would be tops on my list. They could easily do this by acting on the Trump administration’s request for a speedy lifting of the injunction pending a full hearing in the fall.

Congratulations! Justice Neil Gorsuch To Be Sworn In Monday

The Senate has voted to confirm Neil Gorsuch as the newest member of the Supreme Court. This is the cornerstone of President Trump’s legacy, turning the country from liberal, bench-legislating justices.

The final vote was 54-45. In the end, three Democrats voted to confirm: Sens. Heidi Heitkamp, Joe Manchin and Joe Donnelly. Every GOP senator voted along party lines. The pointless filibuster was–well, pointless.

Gorsuch will be officially sworn in Monday.

While conservatives rejoice…

Leonard Leo, adviser to President Trump on the Supreme Court, on leave from the Federalist Society:

“Throughout his career, Judge Gorsuch has demonstrated his commitment to judicial independence and to deciding cases according to the law instead of political preferences.  I applaud President Trump for choosing such an outstanding nominee, and Leader McConnell and his colleagues for defeating an unprecedented partisan filibuster.  A year ago we lost Justice Scalia, a giant, and today we are one step closer to seeing the preservation of his legacy on the Court.”

Carrie Severino, chief counsel and policy adviser, Judicial Crisis Network:

“Congratulations to Judge Gorsuch on his confirmation, and to President Trump and Leader McConnell on this extraordinary achievement.  Because of their leadership, and because of Judge Gorsuch’s commitment to judicial independence and the rule of law, Justice Scalia’s legacy will continue on the Supreme Court.”​

Jenny Beth Martin, president and co-founder, Tea Party Patriots:

“This is an outstanding achievement for President Trump and Senate Republicans who overcame the Democrats’ gridlock strategy and confirmed Judge Gorsuch to the Supreme Court.  With this confirmation vote the torch has been passed from the late Justice Antonin Scalia to an exceptionally well-qualified jurist in Judge Gorsuch. We welcome his addition to the court and look forward with confidence to his upholding and honoring the legacy of Justice Scalia.”

Liberals mourn…

Inside Baseball: How The Nuclear Option Really Works, Step By Step

It’s all very arcane and will actually be quite dull. The real entertainment starts after the motion for Cloture has passed Thursday.

Dry as dust.

If you were to ask a nuclear weapon designer how the bomb works, besides them telling you it’s classified as hell, they might tell you the physics and mathematics are fairly dull. Building and detonating the thing isn’t as exciting as you might think, but the boom at the end is very satisfying. In the Senate, executing the “nuclear option” to overturn a century of filibuster tradition is also dry as dust. But if you want to know the step by step, here’s how it works.

Basically, this is what has taken place so far, and what will happen during the next 60 hours or so.

The past: Tuesday – Wednesday

Step 1: Sen. McConnell filed a motion for a vote of approval on the nominee Neil Gorsuch. Step 2: Sen. Schumer notified the Chair of the Democrat’s intent to filibuster that motion.  At that time, the Democrats officially began their SCOTUS nominee filibuster. Sometime shortly after the filibuster began, Step 3: Sen. McConnell filed a motion for Cloture. Cloture is the procedure to end debate in order to proceed to the vote. In this case, the vote to approve Gorsuch.


According to Senate rules, that motion for Cloture has to “bake” for 24 hours. Which means today was basically an idle day in this process, allowing various senators to take the floor and give their opinion about the nominee or anything else which might have tripped their trigger.

NOW, here is where it gets really interesting.


Step 4: One hour after the Senate has convened Thursday morning, the senate will take up the motion for Cloture and proceed to vote on whether to end the filibuster or not. A Yay vote indicates the voter wants the filibuster to end. A NAY vote means the senator wants the filibuster to continue. In order for the YAY votes (Republicans) to win, they will need 60 votes. This is, and has been senate precedent for many decades. (Remember this, I will come back to it shortly.). In order for the NAY votes to succeed (Democrats) they need 41 votes. As of now, the Whip count is 44 NAYs.

If the NAYs have over 40 votes, then the filibuster will go on. Apparently, the Democrats have over 40 votes, so the filibuster will continue. This is where a bit of a technicality comes into play. Sen. Mitch McConnell will vote NAY with the Democrats because the NAYs technically are the minority vote even though the Democrats/NAYs got what they wanted.  This is a very integral piece of this puzzle.

Step 5: Because the bourbon sipping Majority Leader voted in the minority, by Senate rules, he is allowed to request a re-vote. Which he will promptly do.

So, here is where we are: Motion for Cloture (ending filibuster) fails because the Republicans do not get 60 votes. Senator Mitch McConnell having voted NAY with the Democrats, request the Chair have a re-vote on the motion for Cloture.

However, as he makes this request, he will add a rider to it. Something like “Mr. President, I request a re-vote on this motion for Cloture, and furthermore I request that only a simple majority of 51 votes is required.”

Step 6: Here is Sen. Schumer’s cue: “Mr. President, I object. Blah blah blah. Senate precedent is 60 votes to pass the motion for Cloture, not a simple majority. I ask you deny my good friend, the senator from Kentucky’s request for a re-vote needing only a simple majority of 51 votes to pass.”

Step 7: This is where the Chair has his/her speaking part: “Sen. McConnell’s request for a re-vote needing only a simple majority, 51 votes, is denied due to the fact that senate precedent requires 60 votes to pass the motion for Cloture.


Step 8: Where upon Sen. McConnell steps right up and makes a motion to overturn the ruling of the Chair. A motion to overturn the ruling of the Chair only needs a simple majority, 51 votes. THIS IS THE NUCLEAR OPTION VOTE. 

So, while Fox News, CNN, MSNBC, Blaze and RT are carrying C-SPAN live with assorted “Breaking News!!! banners, we will see some 51-53 senators vote to overturn the Chair’s ruling, which means we’ve just seen the nuclear option  invoked.

Where was I? Oh, yeah, the nuclear option. (Sorry got carried away thinking about CNN. Breathless Wolf will undoubtably go to bed tonight thinking he’ll be picking in some high cotton tomorrow. I bet they are staying up all night dreaming up all those chyrons to scroll across the bottom of the screen.)

Step 9: After the vote to overturn the ruling of the Chair, and the nuclear option is invoked, Sen. McConnell will again request a re-vote on the motion for Cloture. Because the nuclear option has been approved, the motion for Cloture will now only require 51 votes to pass. It will pass and business will be over for Thursday. Now on to Friday night.

Friday Night

Step 10: By Senate rules, there must be 30 hours between a successful vote on Cloture and the actual vote to confirm the nominee. What this means is the actual vote to confirm SCOTUS nominee Neil Gorsuch will come late late Friday night. But it will come. Mitch McConnell wants this done and over with. Besides, he’ll need time to schedule his victory dance on all of the Sunday talk shows.

It’s all very arcane and will actually be quite dull. The real entertainment starts after the motion for Cloture has passed Thursday. Look for Schumer and company to link arms, march to the Capitol steps, find as many cameras and microphones as they can and begin pontificating about the myriad ways McConnell and his partisan thugs have ruined the senate for all time. You will think they have memorized The Book of Revelation by their apocryphal prophecies.

Good times.  Now you know the boring, technical stuff behind the spectacle.

Postscript: You might hear Democrats and the MSM refer to the nuclear option as “changing the rules of the Senate”. This is simply not true. 67 votes are required to change senate rules. The traditional 60 votes required to end a filibuster is a “senate precedent”, or senate tradition. Changing a senate precedent such as number of votes necessary to end Cloture requires only a simple majority, 51 votes. This is Democratic spin. Changing a rule seems more dramatic than changing precedent.