Republicans appear ready to trigger the “nuclear option” on Supreme Court nominees.
It’s now up to Senate Republicans whether Neil Gorsuch gets confirmed to the Supreme Court this week.
Senate Democrats locked down enough votes on Monday to filibuster Gorsuch’s nomination on the Senate floor, shifting the focus to the GOP majority and its vow to confirm Gorsuch by week’s end, one way or another.
To do so, Republicans will have to invoke the so-called nuclear option to change longstanding Senate precedent by a simple majority of the chamber so that filibusters of Supreme Court nominees can be cut off with just 51 votes, not 60. It’s the same maneuver Republicans chastised then-Majority Leader Harry Reid and Senate Democrats for deploying in another heated nominations battle in 2013.
Senate Majority Leader Mitch McConnell (R-Ky.) can only lose two GOP senators on a vote to use the nuclear option, but no Republican has said they would oppose the controversial parliamentary move — even as they openly acknowledge that they may regret doing so.
“I have terrible qualms,” Sen. John McCain (R-Ariz.), who as a member of the Gang of 14 staved off a nuclear battle over judicial nominees during the George W. Bush administration, said in an interview. “Democrats are obviously paying a heavy price for what Harry Reid did, and I believe we will pay a price for this.”
Nevertheless, McCain will go nuclear: “I have no choice,” he said.
“I don’t know what I’m going to do on the rule change, personally, but it’s clearly going to happen,” Sen. Susan Collins (R-Maine) added. “If it’s necessary in order to get him confirmed, I may have to vote that way, but I certainly don’t want to.”
Republicans are up in arms over the Democrats’ promise to block Gorsuch. They note it would be the first successful filibuster of a Supreme Court nominee in nearly 50 years, and the first one solely along party lines in the chamber’s history. However, Senate Republicans also blocked Merrick Garland, President Barack Obama’s final Supreme Court nominee, from even receiving a hearing to replace the late Justice Antonin Scalia.
The showdown over the nuclear option is expected on Thursday. Senate Republicans have vowed to use any means to ensure Gorsuch is confirmed before senators leave for the two-week Easter recess.
Earlier Monday, Sen. Chris Coons (D-Del.) became the 41st Senate Democrat to say he would vote to block Gorsuch’s confirmation. Sen. Ben Cardin (D-Md.), who had previously announced his opposition to Gorsuch, followed shortly after Coons and said he would also vote to filibuster the 10th U.S. Circuit Court of Appeals judge, as did Sen. Bob Menendez (D-N.J.). Four Senate Democrats have said they would vote to advance Gorsuch’s nomination, and one — independent Sen. Angus King of Maine — remains publicly undecided.
Shortly after Coons’ announcement, the Judiciary Committee voted 11-9 to advance Gorsuch’s nomination. During the heated, four-hour hearing, one Democrat after another slammed the judge’s conservative record and his unwillingness, in their view, to be forthcoming about his judicial philosophy.
In the first moments of the hearing, California Sen. Dianne Feinstein and Vermont Sen. Patrick Leahy — two of the most veteran Democrats on the committee — said they would vote to filibuster Gorsuch’s nomination. Almost simultaneously, Sen. Mark Warner (D-Va.) announced he would help block Gorsuch on the floor. Sen. Ben Cardin (D-Md.), who announced his opposition to Gorsuch last week but remained undecided on a filibuster, also said he would join most Democrats to block a confirmation vote.
Leahy was particularly critical of Gorsuch: the former Judiciary Committee chairman called the Supreme Court nominee’s responses to senators “actually excruciatingly evasive.”
“Unless we were asking about fishing or basketball, Judge Gorsuch stonewalled and avoided any substantive response,” Leahy said during the lengthy hearing. “His sworn testimony, his approach to complying with this committee’s historic role in the confirmation process had been patronizing.”
Meanwhile, Feinstein called Gorsuch’s responses to the committee “so diluted with ambiguity,” even on long-settled decisions such as Brown v. Board of Education, the landmark 1954 Supreme Court ruling that outlawed segregation at public schools.
“We’re not just evaluating resumes,” said Feinstein, the top Democrat on the Judiciary Committee. “Rather, all of us evaluate not only their education and experience, but also their judicial philosophy, temperament and views on important legal issues.”
The showdown on the floor will touch on not just Gorsuch’s credentials and fitness to serve on the Supreme Court, but on whether the Senate will remain a more collaborative chamber than the hot-tempered House.
“The Democrats have once again have got themselves into a room, and persuaded them to do something that’s never been done before in the history of the Senate which is gonna be very damaging to them, to the Senate and to the country,” said Sen. Lamar Alexander (R-Tenn.), another longtime Senate institutionalist. “And the response to that is going to be something that the Democrats three years ago did in 2013.”
Still, Alexander declined to say whether he himself would vote in favor of the nuclear option. Neither did Sen. Lisa Murkowski (R-Alaska).
Sen. Lindsey Graham (R-S.C.), who has worked for years to stave off nuclear fights over presidential nominations and voted to confirm Justices Sonia Sotomayor and Elena Kagan, who were appointed by Obama, stressed Monday that he was ready to vote in favor of the nuclear option nonetheless.
“There’s nothing wrong with him,” said a clearly frustrated Graham. “There’s a lot wrong with modern politics in the Senate.”
Still, the threat of the Republicans’ imminent use of the nuclear option didn’t dissuade some key swing Democratic votes.
“I have hoped that bipartisan efforts would result in a better way forward, instead of Republicans threatening to impose the ‘nuclear’ option,” Warner said in his statement announcing his opposition. “But such a threat is not alone reason enough to support a nominee who has not provided the Senate with sufficient assurances regarding his approach and judicial philosophy.”