The Senate Republicans who kept a Supreme Court seat vacant for more than nine months last year appear poised to change one of the Senate’s most-treasured rules in order to confirm Judge Neil Gorsuch to the position by a simple majority vote.
Amid mutual blame-casting so bitter that it’s bound to poison future deliberations, no Republican on Tuesday publicly veered away from the potential rules change ominously known on Capitol Hill as the “nuclear option.”
Absent some unexpected plot twist, the Senate is on course to confirm Gorsuch, end filibusters on Supreme Court nominees and leave recriminations even among the victors by the end of the week.
“It should be unsettling to everyone that our colleagues across the aisle have brought the Senate to this new low,” Senate Majority Leader Mitch McConnell, R-Ky., said on the Senate floor Tuesday morning, adding that “history will be watching, and the future of the Senate will hang on their choice.”
Republicans control 52 Senate seats. Sixty are currently needed to limit debate, but Gorsuch supporters can count no more than 56, making it likely McConnell will trigger the “nuclear option.” That would mean 51 votes would limit debate, easing Gorsuch’s path.
In a sign that backstage maneuvering and vote-whipping continue, the chair of the Senate Republican Conference, Sen. John Thune of South Dakota, declined repeated requests Tuesday to say whether Republican leaders had lined up the votes necessary to support the controversial rules change. Instead, Thune repeatedly stated that “we have the votes to confirm the judge.”
The Senate Judiciary Committee approved Gorsuch’s nomination on Monday by a party line 11-9 vote.
Though three Democrats from the red states of West Virginia, North Dakota and Indiana have announced they will vote for Gorsuch, more than 40 have declared their opposition. Sen. Michael Bennet, D-Colo., said he would not back a filibuster but was undecided on Gorsuch. Democrats have enough support to sustain the endless debate of a filibuster, which can be cut off only with the approval of 60 senators.
Judge Gorsuch enjoys broad support from across the political spectrum, especially from his colleagues and members of the bar.
Sen. John Cornyn, R-Texas
Most Democrats are holding firm, in large part because of Republicans’ refusal last year to consider then-President Barack Obama’s nominee, Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit. Obama nominated Garland on March 16, 2016, following the Feb. 13 death of Antonin Scalia.
“What the majority leader did to Merrick Garland, by denying him even a hearing and a vote, is even worse than a filibuster,” Senate Minority Leader Chuck Schumer, D-N.Y., said Tuesday.
Republicans, in turn, characterize the Democratic effort to block a vote on Gorsuch’s nomination as the first-ever “partisan” filibuster of a Supreme Court nominee. On Oct. 1, 1968, 19 Democrats and 24 Republicans joined to sustain a filibuster that prevented Justice Abe Fortas from serving as chief justice. Fortas was dogged by ethics issues and resigned the next year.
In 2006, 19 Democrats, including Sens. Maria Cantwell of Washington state and Bill Nelson of Florida, joined Republicans in ending a threatened filibuster against conservative nominee Samuel Alito. Cantwell and Nelson later voted against Alito’s confirmation.
The so-called “nuclear option,” sometimes called the “constitutional option” by those prepared to deploy it, essentially entails the Senate’s ruling party changing the rules by a majority vote. That means that only 51 votes, instead of 60, would be needed to end a watered-down filibuster of Supreme Court nominees. Neither party has a monopoly on its exploitation.
Senate Republican leaders in 2005, frustrated with Democrats blocking the nominees of then-President George W. Bush, seriously considered going the nuclear option route until a bipartisan group of senators struck a compromise. No such efforts are underway now.
“The atmosphere is different,” Sen. John McCain, R-Ariz., said Tuesday. “The environment was such that we were encouraged to meet and resolve the issue. Now, we are discouraged.”
Senate Democrats, when they held power in 2013, invoked the nuclear option to end filibusters on lower-level judicial as well as Cabinet nominees. As a result, they placed three of Obama’s nominees on the influential D.C. circuit court, where they have subsequently ruled in support of some Obama administration policies.
“It was a naked power grab,” Sen. John Cornyn, R-Texas, said Tuesday.
Though McConnell has only a slim margin to work with in changing the rules to reach that up-or-down vote, his GOP members appear to be moving in lockstep even as some voice regrets.
“We will not have a successful filibuster of a Supreme Court nominee because if we have to, we will change the rules,” said Rep. Lindsey Graham, R-S.C. “And it looks like we’re going to have to. I hate that. I really, really do.”