Democrats Choose Path on Gorsuch That Could Change Washington

  • Democrats have enough votes to block high court confirmation
  • McCain giving up compromise bid, will vote to change rules

Democrat Bid to Block Gorsuch May Trigger Nuclear Option

Senate Democrats set the stage for a confrontation this week that likely will change how Washington works, as they assembled more than enough votes to block President Donald Trump’s first Supreme Court nominee under the current rules.

Chris Coons of Delaware and Maryland’s Ben Cardin on Monday became the 41st and 42nd Democrats to say they would vote against advancing the nomination of Judge Neil Gorsuch. Shortly afterward, Republican John McCain said he was giving up his effort to forge a compromise.

Majority Leader Mitch McConnell has made clear Gorsuch will be confirmed one way or the other -- even if that means further eroding decades of Senate traditions that have forced the majority to compromise.

To deliver on his promise, McConnell is likely to invoke what’s known as the “nuclear option” -- changing Senate rules to eliminate the 60-vote threshold and end filibusters on high court nominees. McCain said he will vote for the rule change.

“I guarantee you, just as the Democrats regretted what Harry Reid did, we will regret doing this,” McCain of Arizona told reporters. He was referring to then-Democratic leader Harry Reid’s decision in 2013 to end the filibuster for lower-court and executive-branch nominees.

Asked why he would support a rule change he finds so objectionable, McCain said, “I have no choice. I have no choice. Because we need to confirm Gorsuch.”

The Nuclear Option, Washington’s Explosive Topic: QuickTake Q&A

The move is called the nuclear option for a reason -- it would destroy one of the few restraints that still distinguishes the Senate from the more raucous, majority-rule House. The Senate is often referred to as the world’s greatest deliberative body, and the power the filibuster gives to the minority is what forces that deliberation. Eliminating it would create a ripple effect across Washington, deepening the partisanship.

The Senate Judiciary Committee voted Monday to advance Gorsuch’s nomination on a party-line vote. McConnell has said the full Senate will vote on the nomination Friday, but the real showdown is expected Thursday, when the Senate would hold the procedural vote that could prompt Republicans to change the chamber’s rules.

“I cannot vote solely to protect an institution when the lives of hard-working Americans are at risk,” Democrat Patrick Leahy of Vermont, the longest serving senator currently in office, said Monday before the committee voted. “The Senate I would be defending no longer exists.”

Going nuclear would immediately poison a chamber that requires consensus to operate efficiently. It would infuriate Democrats, who would likely use Senate rules to gum up the works for Republicans at every turn -- slowing down the president’s lower-level nominees, holding up routine Senate business and generally slowing things to crawl at a time when Trump is struggling to fill out his administration and push through an ambitious agenda. 

“It looks like we’re going to have to” change the rules, Republican Lindsey Graham of South Carolina said at Monday’s Senate Judiciary Committee meeting. “I hate that.”

Threat of Escalation

Senators warn that if Democrats retaliate, the dispute between the parties may escalate further. Republicans could choose to eliminate the 60-vote threshold not just for presidential nominees but for legislation, so that bills could pass with a simple majority. Such a change would remove the last vestige of the Senate’s long tradition of debate and compromise, turning it into a smaller version of the House and fundamentally transforming the way laws are made.

Will Judge Gorsuch Need a Nuclear Option to Be Confirmed?

"It would be very easy the next time there is a big legislative issue, just to go ahead and do it," said Republican Bob Corker of Tennessee.

At a minimum, the outcome will set the tone for future high court nominees in a way that over time could transform the court into a more purely partisan institution.

Senators in both parties use near-apocalyptic terms to describe the stakes -- Democrat Jeff Merkley of Oregon and Corker have both said the outcome could “destroy” the Senate, although Merkley has in the past advocated for changes to the filibuster.

"If the Senate decides to destroy even further the Senate, they’re gonna also begin the process of destroying the Supreme Court," Corker said, with presidents no longer facing a bipartisan check on extreme picks.

It not certain that McConnell has the 50 Republican votes needed to change the Senate’s rules if Vice President Mike Pence casts the tie-breaking vote. Some Republicans could hold back, although none have said publicly they would oppose the move.

Pursuing a Deal

Read more: Blooomberg View: Simple Advice for Democrats Girding for Gorsuch

McCain had said last week he was having conversations with colleagues in hopes of reaching a deal that would confirm Gorsuch and preserve the filibuster for the "long term." But McCain acknowledged at the time that the odds were "overwhelmingly against" such a deal.

For Democrats, the fight started with Republican obstruction of President Barack Obama’s picks, culminating in last year’s treatment of his nominee for the high court, Merrick Garland, who never got a hearing, let alone a vote. 

Illustration: Isabel Seliger/Sepia

Republicans point to Democrats, who deployed the nuclear option in 2013 to eliminate the 60-vote threshold for all nominees except to the Supreme Court, and earlier weaponized the filibuster as a standard-fare partisan tool against nominees under President George W. Bush.

Leading the Charge

Minority Leader Chuck Schumer of New York has been rallying Democrats to block Gorsuch, dismissing the idea that Democrats should save the filibuster for the next Supreme Court vacancy. Schumer has argued that if Republicans are willing to change the rules now, there’s no reason to expect they wouldn’t the next time around.

Liberals see Gorsuch as a major threat on key issues they care about -- like overturning the Citizens United decision gutting many campaign finance regulations and preserving the executive branch’s power to regulate.

The risks are immense, say Corker and Graham. If it only takes 51 votes to approve future Supreme Court nominees, they expect more extreme picks.

"You’re going to get more ideological choices because you don’t have to reach across the aisle," Graham said. "And the Senate will become even more contested. Every Senate seat is going to be a referendum on the Supreme Court."

Ruth Bader Ginsburg

Hanging over this is the likelihood that Trump will get one or more additional Supreme Court picks. The high court’s most frequent swing justice, Anthony Kennedy, is 80. Liberals Ruth Bader Ginsburg and Stephen Breyer are 84 and 78, respectively. Replacing any of them with a conservative would put the court in position to roll back a number of liberal precedents, including the landmark Roe v. Wade abortion rights ruling and decisions protecting the rights of gays and racial minorities.

If the rules are changed, the next fight could come over eliminating the filibuster for legislation, a move that could facilitate far more profound partisan swings in policy.

Grassley, an Iowa Republican first elected in 1980, said Democrats need to take heed of that looming threat.

"If it’s a slippery slope that goes to legislation, I would think they would think that would be very bad and wouldn’t want to do that," he said.

McConnell, however, said Sunday on NBC’s "Meet the Press" that the legislative filibuster is “a longstanding tradition of the Senate” and that he didn’t think it was “in danger.”

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