President Trump is on track to appoint his third Supreme Court Justice this term, the most in a single term since President Nixon. In the current nomination process of Judge Amy Coney Barrett, the Republican Senate Majority has 53 members. This is more than enough to pass the current threshold of 50 votes with Vice President Pence to break the tie. However, this was not always the case. Prior to Justice Gorsuch's nomination, 60 votes were required for a Supreme Court Justice to be nominated. However, due to the inability to get Gorsuch nominated successfully under this rule, Senate Majority Leader Mitch McConnell invoked the so-called "Nuclear Option", lowering the threshold to the current rule, 51 or 50 plus Vice President.
It's pretty clear why McConnell changed the rule but did changing the rule really make sense? Based on Buchanan's A Generalized Economic Theory of Constitutions, nothing really changed in the average confirmation process. The external cost and decision-making cost curves have not shifted, yet the rule changed anyway. This moves away from the assumed optimum at 60 votes to this point of higher expected costs at 50 votes. While this short-run solution increases Republican's utility and decreases their personal decision-making costs, in the future the rule will also apply to them, resulting in higher-than-necessary external costs. However, given the fact that the Supreme Court has lifelong appointments, this payoff may actually outweigh the long-run higher costs, given that the rules may change in the future due to the Supreme Court's power of judicial review.
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