The Senate’s Republican and Democratic leaders have set the stage for Judge Neil M. Gorsuch to be confirmed to the Supreme Court this week, but only after a partisan battle that likely will lead to changing the Senate’s rules.
On Monday, the Senate Judiciary Committee is expected to vote to send the Gorsuch nomination to the full Senate. Debate in the Senate is expected to start on Tuesday, with a final decision by week’s end.
Senate Minority Leader Charles E. Schumer (D-N.Y.) said Sunday on NBC’s “Meet the Press,” that it is “highly, highly unlikely” that President Trump’s nominee will get the 60 votes needed to cut off debate on the Senate floor under current rules.
So far, only three Democratic senators — Joe Manchin III of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana — have said they will vote to end debate and support Gorsuch.
Eight Democrats would need to join all 52 Republicans to reach the 60-vote cutoff, and vote counters on both sides say that’s unlikely to happen.
Regardless, there will be a confirmation vote this week, and Gorsuch will be confirmed, said Senate Majority Leader Mitch McConnell (R-Ky.).
McConnell has made clear that if pressed, he will trigger a change in the rules and allow Supreme Court nominees from here on out to be confirmed on a majority vote. With 52 Republicans in support, McConnell is confident he can accomplish that change.
Confirming Gorsuch to fill the seat vacated when Justice Antonin Scalia died last year has been a top priority for conservatives. A group backing the nominee has spent millions in television ads to put pressure on Democratic senators from conservative states.
Polls show the nomination, which would largely maintain the current ideological division on the high court, has generated less intensity from Democratic voters. The mobilization on the liberal side has been notably less than among conservatives and also less than the outpouring of protest in the last two months over Republican efforts on healthcare and immigration.
Each side has blamed the other for a breakdown in the tradition that Supreme Court justices should have at least some support from both parties.
McConnell blamed the Democrats for using filibusters to block votes on several of President George W. Bush’s nominees to federal appeals courts and then, in 2013, for changing the rules after Republicans blocked several of President Obama’s nominees. At that time, Democrats used their majority to allow lower court nominees and executive-branch officials to be approved on a simple majority vote.
That “was terrible for the Senate,” McConnell said, but it set a precedent for changing the rules for confirming all judges, including justices of the Supreme Court.
Filibusters for judicial nominees were not envisioned prior to 2001, McConnell said. Justice Clarence Thomas, who he described as “the most controversial Supreme Court nominee in history,” was approved on a 52-48 vote in 1991 when Democrats were in the majority in the Senate, he noted.
McConnell’s statement that filibusters were never used, or even thought of, before 2001 — a claim he has made several times — is not accurate. President Lyndon B. Johnson’s effort to elevate Justice Abe Fortas to chief justice was defeated by a filibuster in October 1968, although that filibuster, unlike the current one, was a bipartisan affair.
Fortas’ nomination came after Chief Justice Earl Warren announced his intention to retire. The nominee was blocked by a coalition of Republicans and conservative, Southern Democrats. After the filibuster blocked Fortas, the chief justice’s seat was filled the next year when newly elected President Nixon chose Warren Burger for the post.
For his part, Schumer blamed McConnell and the Republicans for refusing to hold a hearing or a vote last year on Judge Merrick Garland, President Obama’s nominee to fill the Scalia seat.
Schumer said the refusal to consider Garland broke with 230 years of Senate tradition.
That’s also not accurate. In the 19th century, the Senate more than once took no action on Supreme Court nominations, in a few instances keeping vacancies open for years. That’s not been the practice since the start of the 20th century, however.
Schumer also blamed Trump for not reaching out to Democrats before making his nomination. He said Presidents Clinton and Obama had sought the advice of Senate Republicans before choosing their high court nominees. Trump, he said, relied entirely on the Federalist Society and the Heritage Foundation, which he described as “hard right groups.”
While McConnell said the Democrats had “no rational basis” or “principled reason” for opposing Gorsuch, Schumer insisted he “is not a mainstream choice.”
There had been a “seismic shift” in the Democratic caucus after the 49-year-old U.S. Circuit Court of Appeals judge from Denver “refused to answer the most rudimentary questions” during his confirmation hearings, Schumer said. The senator added that Democrats were more united in opposing Trump’s nominees after the hearing.
The two Senate leaders agreed on one point: Both said they believed the filibuster rule regarding legislation would survive, even if the Senate eliminates filibusters for all judicial nominees.
On Twitter: DavidGSavage
1:25 p.m.: This article was updated with additional detail on the expected schedule for the debate over the Gorsuch nomination and the spending on advertising by backers of the nominee.
This article was originally published at 12:10 p.m.