Democrats are lining up to block a vote on Judge Neil Gorsuch, and Majority Leader Mitch McConnell has made clear he will be confirmed one way or the other -- even if that means further eroding decades of Senate traditions that have forced the majority to compromise, according to Bloomberg.
To deliver on his promise, McConnell might have to invoke what’s known as the "nuclear option" -- changing Senate rules to eliminate the 60-vote threshold and end filibusters on high court nominees.
It’s called the nuclear option for a reason -- it would destroy one of the few restraints that still distinguishes the Senate from the more raucous, majority-rule House. The Senate is often referred to as the world’s greatest deliberative body, and the power the filibuster gives to the minority is what forces that deliberation. Eliminating it would create a ripple effect across Washington, deepening the partisanship.
Going nuclear would immediately poison a chamber that requires consensus to operate efficiently. It would infuriate Democrats, who would likely use Senate rules to gum up the works for Republicans at every turn -- slowing down the president’s lower-level nominees, holding up routine Senate business and generally slowing things to crawl at a time when Trump is struggling to fill out his administration and push through an ambitious agenda.
Threat of Escalation
Senators warn that if Democrats retaliate in this way, the dispute between the parties may escalate further. Republicans could choose to eliminate the 60-vote threshold not just for presidential nominees but for legislation, so that bills could pass with a simple majority. Such a change would remove the last vestige of the Senate’s long tradition of debate and compromise, turning it into a smaller version of the House and fundamentally transforming the way laws are made.
"It would be very easy the next time there is a big legislative issue, just to go ahead and do it," said Republican Bob Corker of Tennessee.
At a minimum, the outcome will set the tone for future high court nominees in a way that over time could transform the court into a more purely partisan institution.
Senators in both parties use near-apocalyptic terms to describe the stakes -- Democrat Jeff Merkley of Oregon and Corker have both said the outcome could “destroy” the Senate.
"If the Senate decides to destroy even further the Senate, they’re gonna also begin the process of destroying the Supreme Court," Corker said, with presidents no longer facing a bipartisan check on extreme picks.
There’s still a chance Gorsuch could win the 60 votes needed to advance under the existing rules, although that window is narrowing significantly with at least 37 Democrats saying publicly that they would vote to filibuster. It takes 41 Democrats to block Gorsuch under the current rules.
It’s also unclear whether McConnell has the 50 Republican votes needed to change the Senate’s rules if Vice President Mike Pence casts the tie-breaking vote. Some Republicans could hold back, worried about what could happen when Democrats regain control of the Senate.
Pursuing a Deal
Senator John McCain of Arizona said last week he’s having conversations with colleagues in hopes of reaching a deal that would confirm Gorsuch and preserve the filibuster for the "long term."
But McCain acknowledged odds are "overwhelmingly against" such a deal and blamed a far more partisan atmosphere than in 2005, when he helped lead a "Gang of 14" to avert a previous "nuclear" confrontation.
The Senate Judiciary Committee is expected to advance Gorsuch’s nomination Monday, with McConnell vowing the full Senate will follow Friday.
The real showdown could come on Wednesday, when the Senate is expected to hold the procedural vote that could prompt Republicans to change the chamber’s rules.
For Democrats, the fight started with Republican obstruction of President Barack Obama’s picks, culminating in last year’s treatment of his nominee for the high court, Merrick Garland, who never got a hearing, let alone a vote.
Republicans for their part point to Democrats, who deployed the nuclear option in 2013 to eliminate the 60-vote threshold for all nominees except to the Supreme Court, and earlier weaponized the filibuster as a standard-fare partisan tool against nominees under President George W. Bush.
Leading the Charge
Minority Leader Chuck Schumer of New York has been rallying Democrats to block Gorsuch, dismissing the idea that Democrats should save the filibuster for the next Supreme Court vacancy. Schumer has argued that if Republicans are willing to change the rules now, there’s no reason to expect they wouldn’t the next time around.
On Sunday night, Schumer told progressive activists on a conference call that Democrats are close to having the votes they need to block him, encouraging activists to focus on persuading moderate Republicans to reject any effort by Republican leaders to change Senate rules.
Liberals see Gorsuch as a major threat on key issues they care about -- like overturning the Citizens United decision gutting many campaign finance regulations and preserving the executive branch’s power to regulate.
The risks are immense, say Corker and Senator Lindsey Graham, a South Carolina Republican. If it only takes 51 votes to approve future Supreme Court nominees, they expect more extreme picks.
"You’re going to get more ideological choices because you don’t have to reach across the aisle," Graham said. "And the Senate will become even more contested. Every Senate seat is going to be a referendum on the Supreme Court."
Hanging over this is the likelihood that Trump will get one or more additional Supreme Court picks. The high court’s most frequent swing justice, Anthony Kennedy, is 80. Liberals Ruth Bader Ginsburg and Stephen Breyer are 84 and 78, respectively. Replacing any of them with a conservative would put the court in position to roll back a number of liberal precedents, including the landmark Roe v. Wade abortion rights ruling and decisions protecting the rights of gays and racial minorities.
Little ‘Common Ground’
For the Senate itself, Democratic Senator Chris Coons, who has emerged as a pivotal figure in efforts to defuse the confrontation, warns there’s only a meager reserve of goodwill left.
"There is not a lot of common ground and trust to work off of," the Delaware Democrat said. "But I’m open to anyone who’s got a reasonable suggestion for how we might slow what seems to be an inextricable path toward changing the rules."
If the rules are changed, the next fight could come over eliminating the filibuster for legislation, a move that could facilitate far more profound partisan swings in policy.
Senate Judiciary Chairman Chuck Grassley, an Iowa Republican first elected in 1980, said Democrats need to take heed of that looming threat.
"If it’s a slippery slope that goes to legislation, I would think they would think that would be very bad and wouldn’t want to do that," he said.
‘Longstanding Tradition’
McConnell, however, said Sunday on NBC’s "Meet the Press" that the legislative filibuster is “a longstanding tradition of the Senate” and that he didn’t think it was “in danger.”
Gorsuch was unanimously confirmed by the Senate for a lower court slot in 2006, but the chamber has changed markedly since then. Only 41 of the Senate’s 100 current members were serving at that time. And only three members of the "Gang of 14" are still in the Senate -- McCain, Graham and Susan Collins of Maine.
The last time a Supreme Court nominee was confirmed with fewer than 60 votes was in 2006, when Samuel Alito won approval on a 58-42 vote. He easily overcame a filibuster preceding the vote, 72-25, with 19 Democrats voting to advance his nomination even though they didn’t support him. Just two of those senators -- Bill Nelson of Florida and Tom Carper of Delaware -- remain in office.
This time, both Nelson and Carper have announced that they will help filibuster Gorsuch. Nelson cited reasons including concerns about Gorsuch’s potential impact on voting rights. Carper mentioned the GOP’s treatment of Garland.
"What I’ve been saying all along is that I’m not prepared to move ahead on a Gorsuch nomination until we’ve dealt with appropriately the nomination of Merrick Garland," Carper said. "When there’s a vacancy to be filled, it can be filled by Merrick Garland."