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Today’s Senate Action: Positional or Interest Based?

April 6, 2017

In mediation, sometimes litigants and their attorneys focus mainly on their legal positions, which might be the polar opposites of positions held by the other side, leading to impasse. Instead, the disputants could, and sometimes do, hone in on their underlying interests, which by contrast might allow commonality with the other side and lead to a satisfactory conclusion of the dispute.

I have written about this in greater detail previously at

Against the above backdrop, I have been looking with considerable fascination at the drama surrounding the confirmation of Judge Gorsuch for a seat on the United States Supreme Court.

Today, against the intransigence of the Democrats to end debate or allow “cloture” to permit a vote on the confirmation, the Senate, led by the Republicans, simply changed the rules, lessening the requirement to 51 from 60 votes to move ahead with confirmation.


I understand the position held by the Democrats in refusing to allow a confirmation vote, and their anger over the Republicans refusing to allow even a hearing in furtherance of Judge Merick Garland’s nomination by President Obama last year.


I do not understand, from an interest based point of view, why they risked the so-called “nuclear option” of the rule change.

Neither do I understand the long term, interest based benefit, if any, for the Republicans in eliminating the filibuster and allowing confirmation by simple majority.

What happens later when the pendulum swings back from the right to the left ?

This move seems short sighted to me. I guess it is because they want President Trump’s nominee, Judge Gorsuch, at all costs and/or want to show the Democrats who’s in charge.

But are they all shooting themselves in the foot by eliminating the 60 vote requirement and thus eliminating any need to work together in the future?

Again, what happens later when the pendulum swings back to the left from the right?

Are compromise, conciliation, consensus, and collegiality dead in the Senate, now? And in the future?

I guess we will have to wait and see.


David I. Karp is a full time independent mediator of real estate and business disputes in Southern California. His website is at .

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