One of Senate’s most serious jobs – confirming the president’s choice for a lifetime appointment to the Supreme Court – has devolved into a game of political chicken.
Senators are heading toward an institution-defining showdown next week as Democrats promise to try to block President Trump’s nominee, Judge Neil M. Gorsuch, with a filibuster, a rarely seen maneuver for high court appointments.
Republicans are threatening to respond by changing long-standing Senate rules to circumvent the 60 votes that would be needed to overcome a filibuster. Instead they would allow confirmation with a simple majority.
The outcome has the potential to not only shape the future of the Supreme Court — which has been without a full bench since the sudden death of Justice Antonin Scalia last year — it also could crush one final vestige of bipartisanship in the Senate, altering the upper chamber for years to come.
“It churns our stomach,” said Sen. Mike Rounds (R-S.D.) as senators weighed their options this week.
Pressed if they were really ready to invoke the so-called “nuclear option” to ensure Gorsuch is confirmed, many Republican senators this week demurred.
“Can I answer you that in a couple days?” said Sen. Bill Cassidy (R-La.).
“Judge Gorsuch is going to be confirmed. By any means necessary,” Hatch said in a statement.
The battle over the Supreme Court seat was always expected to be a partisan affair in today’s heated political climate. But the polemics intensified after the Republican majority denied President Obama’s nominee, Judge Merrick Garland, a confirmation hearing ahead of last year’s presidential election.
Now the Gorsuch nomination is being viewed as a must-win for Republicans, as Trump’s first 100 days have faltered. For Democrats it has become a proxy for a broader opposition to Trump’s administration and the Republican agenda.
Senate Minority Leader Charles E. Schumer (D-N.Y.) is trying to hold the Democratic minority together to deny Republicans the 60 votes needed to advance Gorsuch past a filibuster.
Republicans, with their 52-seat majority, must peel off eight Democrats to overcome the filibuster. If they are unable to so, Senate Majority Leader Mitch McConnell (R-Ky.) is expected to do as former Senate Majority Leader Harry Reid (D-Nev.) did in 2013, when he used the Democratic majority to change Senate rules to allow a simple majority vote for other types of judicial nominations. Reid said the move was needed to overcome Republican filibusters.
“Once they let the genie out, it’s not going back,” said Rounds. “It never should have been done, but now that is the precedent in the United States Senate.”
Neither McConnell nor Schumer will say, exactly, how many senators they have on their side. Each suggests the other is bluffing.
McConnell has repeatedly promised that Gorsuch will be confirmed April 7, before the two-week spring recess. “I’m confident he’ll be confirmed,” he said.
Judge Gorsuch is going to be confirmed. By any means necessary.
Schumer was equally certain. “It’s going to be a real uphill climb for him to get those 60 votes,” he said.
The test vote is expected next week.
Republicans went into the court fight thinking their task would be easy enough. Gorsuch, the affable Colorado appellate judge, was viewed as a conservative who might be able to attract some Democratic votes.
Republicans also expected the politics would be on their side. Democrats from the red states that Trump won, particularly those up for reelection in 2018, they reasoned, would be more interested in bucking their party than crossing the new president.
But since Trump nominated Gorsuch, the dynamics have dramatically shifted.
Trump’s approval rating continues to nosedive amid the FBI probe into possible collusion between his campaign and Russia, and his own missteps over the botched travel ban and failed repeal of the Affordable Care Act, known as Obamacare.
At the same time, Democrats quickly shifted from being chastened by their November electoral loss to emboldened – even pressured -- by the sudden outpouring of liberal resistance to Trump’s presidency, particularly street protests that erupted in the weeks after the inauguration.
“The base really cares about this, and I think people understand that going along with someone as extreme as Neil Gorsuch is not just bad for the country, it’s bad politics,” said Drew Courtney, spokesman at the liberal advocacy group People for the American Way. “This is the first opportunity for senators to show they will stand and fight. Nothing will do more to dampen enthusiasm than for Democrats to fold on this.”
Some of the more centrist Democrats in the Senate, including Heidi Heitkamp (D-N.D.) and Joe Manchin (D-W.Va.), have kept their options open.
The risk for Democrats, of course, is that not only might they lose the confirmation battle, but their filibuster could trigger a chain of events that changes the operations of the Senate in perhaps irreparable ways.
Experts say moving away from a 60-vote threshold to overcome filibusters of Supreme Court picks would make it easier for presidents in the future to select more ideologically extreme justices.
It may also open the door in the Senate for passage of legislation by simple majority. It currently typically takes 60 votes. The use of filibusters for legislation encourages a dose of bipartisanship since rarely does one party count that many senators.
More than a decade ago, a group of senators, the so-called “Gang of 14,” negotiated a compromise when there was a previous attempt to invoke the nuclear option over filibusters of lower-court nominees. But no such effort appears to be underway this time.
Of the three senators still remaining from the gang, Susan Collins (R-Maine), Lindsey Graham (R-S.C.) and John McCain (R-Ariz.), none seems poised to stop it this time.
Ads are pouring on both sides, from liberal groups as well as special interests, including the National Rifle Assn.’s political arm.
The conservative Judicial Crisis Network has run more than $4 million in ads, and has been criticized for not disclosing its donors, which it is not legally required to do.
As tensions rise ahead of the vote, the group’s chief counsel, Carrie Severino, expects McConnell is not bluffing.
“Democrats have been attempting to just throw sand in the gears,” she said. “Leader McConnell doesn’t want to participate in their gridlock.”