Gorsuch set to be confirmed to the Supreme Court, but will the fight over Trump’s pick break the Senate?
The Senate has been called dysfunctional, outdated and downright broken.
But the anticipated showdown over President Trump’s nominee for the Supreme Court, Judge Neil M. Gorsuch, just might inflict damage beyond repair upon the once-lofty chamber.
On Thursday, Democrats are set to mount a historic filibuster of the nomination, to quickly be followed by a once-unthinkable Republican rule change to break the logjam with a simple majority — clearing the way for Gorsuch to be confirmed Friday for a lifetime seat on the court.
What’s about to unfold is called the “nuclear option” for a reason, and the potential devastation is creating a deeply toxic political environment that threatens core Senate operations for the foreseeable future.
Now, senators worry that it’s only a matter of time before legislation will also be swiftly approved over minority objections, making the famously deliberative Senate run more like the majority-rules House.
“This is not a vote so much about Judge Gorsuch…. It’s a vote about the inability of both parties to work with each other in a substantive way,” said Douglas W. Kmiec, a constitutional law professor at Pepperdine University and former advisor to past administrations.
“The use of the ‘nuclear option’ won’t resolve any of the underlying difficulties,” he said. “They’ll still hate each other in the morning.”
The Senate was always supposed to be the slower-moving chamber of Congress, where the filibuster protected the rights of the minority and gave nod to the bipartisanship needed to get anything done.
It’s a revered tradition, fictionalized by Hollywood — most famously in “Mr. Smith Goes to Washington” — but also studied as a crucial tool of what’s called the world’s most deliberative body.
The mood around the Capitol on Wednesday was grim — “troubling,” “sad,” senators said, adding that the Founding Fathers would be ashamed.
“I fear that someday we will regret what we are about to do,” Sen. John McCain (R-Ariz.) said in a somber speech Wednesday. “In fact, I’m confident we will.”
Yet, despite all the hand-wringing and political soul-searching, senators have not been able — so far — to change what appears to be an inevitable outcome.
Republicans are hungry for a political win, as Trump approaches the first 100 days of his presidency and Congress recesses for a two-week spring break without having repealed Obamacare or solved other top items on the White House to-do list.
And Democrats are angling for a fight. They want to show their liberal base voters they are resisting Trump’s nominee, a conservative Colorado judge who they say is too far out of the mainstream.
A loose alliance of 10 senators, Republicans and Democrats, worked over the weekend — as other Senate “gangs” have done in past standoffs — to negotiate a way around the stalemate.
But trust has been eroded in the Senate, and they could not strike the core guarantee: that the nuclear option would be off the table for the next stalemate.
“It didn’t work,” acknowledged Sen. Susan Collins (R-Maine), who joined the effort.
There’s plenty of blame to go around for what has led the Senate to this moment.
Republican senators raised the nuclear option a decade ago, when the Democratic minority blocked then-President George W. Bush’s district and appellate court nominees. But cooler heads prevailed.
Over time, though, the filibuster has been increasingly employed as a sharp tool, not just to stop nominees, but to block types of legislative measures, grinding Senate operations to a standstill.
Outside groups on both the left and right pressure senators to filibuster, harnessing the power of social media to mobilize thousands of voters to flood offices with calls and emails, and raising money to support those senators who hold the floor.
Democratic Sen. Dianne Feinstein said Wednesday that she knows an issue resonates with California voters when her office receives 30,000 calls. On Gorsuch, she has received 112,000 — the vast majority opposing his nomination.
But senators now worry it’s a slippery slope before another crisis forces a rule change so that it only takes 51 votes to advance legislation and other measures — rather than the 60 now needed to break a filibuster.
Senate Majority Leader Mitch McConnell (R-Ky.) insists the filibuster will remain for legislation, but others are not so sure. And history proves the skeptics are probably right.
When then-Senate Majority Leader Harry Reid (D-Nev.) invoked the nuclear option in 2013, after Republicans pledged to filibuster all of President Obama’s nominees, the rule change applied only to judicial and executive branch picks, not Supreme Court nominations.
Republicans objected at the time, but when they became the majority, they quietly began talking among themselves about using the maneuver for the Supreme Court vacancy left by Justice Antonin Scalia’s death last year.
With this strategy in mind, Republicans refused to consider Obama’s nominee, Judge Merrick Garland, to replace Scalia — who died with 11 months left in the president’s term — preferring to leave the court with the vacancy so a new White House administration could fill the seat.
The argument can be easily extended to legislation once the next must-pass bill faces the logjam of filibuster gridlock.
“There’ll be increased pressure over time for whoever’s in the majority, by their base, to get rid of the filibuster,” Sen. Marco Rubio said Wednesday in a brief interview. “I’m not happy about it, but it’s where we are.”
Those who have grown weary of the slow-moving Senate may cheer this week’s actions as a needed dose of modernity to kick-start what they see as a moribund institution.
A majority-rules Senate could more easily dispatch with Trump’s priorities — repealing and replacing the Affordable Care Act or building the wall along the border with Mexico. If control flips, Democrats could more easily pass theirs.
Expediency, though, comes with a price, and others see a darker outcome. They see the changes in the Senate as chiseling away at the ability of the minority to halt the majority — and the Congress to provide substantial check on the executive branch, regardless of which party is in power.
“It’s very unlikely they’ll be able to keep it closeted,” said Kmiec. “They’ll pretend to do that. But then they’ll get angry at each other and it will go out the window.”
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