With No Democratic Support, Gorsuch Nomination May Usher In ‘Nuclear Option’

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A key Democratic senator warned today that Neil Gorsuch, President Donald Trump’s Supreme Court nominee, is likely to fall short of the votes needed to stave off a Democratic filibuster, likely ushering in the so-called “nuclear option” by Republicans.

With relations between Democrats and Republicans already strained like never before, the brewing fight over Gorsuch’s confirmation and how it could change the way the Senate does business is likely to make the partisan rancor even more intense in the coming days.

Sen. Christopher Coons, D-Del., a member of the Senate Judiciary Committee, said that he doubts that Gorsuch will be able to get the 60 votes needed to end a filibuster threatened by some Democrats.

Republicans “almost certainly” will respond by using their majority status to change Senate procedure and allow Supreme Court picks to be confirmed with a simple majority vote, Coons told MSNBC’s “Morning Joe.”

“I think this is tragic,” he added.

Currently it takes 60 senators to overcome a filibuster of a Supreme Court pick. Republicans hold a narrow 52 to 48 majority in the Senate, requiring at least eight Democrats to join with Republicans to block a filibuster – but no Democratic senator has announced plans to back Gorsuch.

Gorsuch, 49, has been on the Denver-based U.S. Court of Appeals for the past decade and was nominated to fill the Supreme Court seat made vacant when Justice Antonin Scalia died unexpectedly in February 2016. Republicans say that Gorsuch will be confirmed despite Democratic opposition, a threat to make the procedural change allowing a simple majority vote.

A final vote on Gorsuch is still more than a week away. On Monday, the Judiciary Committee delayed a vote on Gorsuch for one week at the request of Democrats. Republican leaders are hoping to confirm him by April 7, when a two-week congressional recess is scheduled to begin, so that Gorsuch can join the court by late April for the final cases of its term that ends in June.

But Democrats called that timetable unprecedented and rushed Monday, noting that since the 1980s, it has taken 29 days on average between the start of a Supreme Court confirmation hearing and a final confirmation vote.

Coons’s prediction came after recent consultations with senators in both parties about brokering an agreement that would lead to Gorsuch’s confirmation and also preserve current Senate traditions, according to multiple senators and aides familiar with his negotiations.

The hope was to find a bipartisan group of rank-and-file senators who could negotiate a deal that would once again steer the Senate away from partisan brinkmanship on federal court vacancies. A group of 14 senators from both parties warded off a similar impasse in 2005 – but just three members of that “Gang of 14” remain in office. And Coons signaled Monday that he’s found little appetite for a new agreement.

“We’ve got a lot of senators concerned about where we’re headed,” he told MSNBC. “There’s Republicans still very mad at us over the 2013 change to the filibuster rule, we’re mad at them for shutting down the government, they’re mad at us for Gorsuch, and we’re not headed in a good direction.”

Democrats used the nuclear option in 2013 to change how the Senate confirms executive branch nominees and lower-level federal judges against the strong objections of Republicans.

Four years later, Democrats are finding there’s little upside to cooperating with Trump and Republicans.

Senate Minority Leader Charles Schumer, D-N.Y., announced plans to filibuster Gorsuch last week and others, including Thomas Carper, D-Del., Elizabeth Warren, D-Mass., and Tom Udall, D-N.M., quickly followed suit. No Democrat has announced that they will support Gorsuch and some moderates say they’re still mulling a final decision.

Sen. Joe Manchin, D-W. Va., said he is planning to meet with Gorsuch again before deciding. Sen. Heidi Heitkamp, D-N.D., said in a statement that she is “in the process of reviewing” the nomination and won’t make a final decision for several days. Others, including Sen. Joe Donnelly, D-Ind., did not reply to requests for comment.

The White House and Senate Republicans are hoping that a multimillion-dollar ad campaign bankrolled by conservative legal groups can help pressure Manchin, Heitkamp, Donnelly and seven other Democrats facing reelection next year in states that Trump won last November in hopes of winning their support. But two of those 10 Democrats – Robert Casey, D-Pa., and Bill Nelson, D-Fla. – have said in recent days that they will vote against Gorsuch.

If the pressure campaign doesn’t work, GOP aides privately hope that senior Democrats can prevail upon colleagues to at least help break a filibuster to preserve Senate tradition. Some cited comments by Sen. Patrick Leahy, D-Vt., who has served on the judiciary committee since 1979 and told the Vermont political website VTDigger.org over the weekend that while he is opposed to Gorsuch, “I am not inclined to filibuster.”

Many Democrats know that supporting Gorsuch would cost them support back home.

At a town hall meeting Sunday afternoon in Rhode Island, Sen. Sheldon Whitehouse, D-R.I., was welcomed with a standing ovation for his role in the Gorsuch hearings as a member of the judiciary panel.

The senator explained that Gorsuch had failed to win over any Democrats with evasive answers on issues like campaign finance and gerrymandering. One constituent, holding a sign that shared her support for Merrick Garland – President Barack Obama’s Supreme Court nominee who was blocked by Republicans last year – asked whether Republicans would really blow up the filibuster to get Gorsuch through.

“They can, but by all rights, 60 votes ought to be the standard,” Whitehouse said. “When he doesn’t get 60 votes, that’s going to give Mitch McConnell a tough choice. He’ll have to either change the candidate or change the rules. And it’s not going to be easy for him to change the rules, because a lot of people in his caucus will push back. We have to have the vote, show this guy can’t get 60, and see where it goes from there. In the crucible of the Senate, sometimes good things can emerge.”

Over a few rounds of questions, Whitehouse raised the possibility that Gorsuch would be blocked and Republicans would start over with a more moderate nominee. In a short interview after the speech, Whitehouse said he was confident that more than 40 Democrats would hang together.

“If four, or five, or two, or no Democrats want to support him, the result is the same: Not 60,” Whitehouse said. “This is a problem [Republicans] should have seen when they picked a nominee off of a list from special interest groups.”

Asked about the possibility that the filibuster would be “nuked,” ripping it away from Democrats in future fights, Whitehouse chuckled.

“To my mind, there’s no reason to lose a fight in order to save yourself for a later fight,” he said. “You just face the same fight later, plus you’ve already lost.”

(c) 2017, The Washington Post · Ed O’Keefe, David Weigel 

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2 COMMENTS

  1. Let’s play detective here, as the facts of this case don’t appear to make sense for the following reasons:

    1) Judge Gorsuch is conservative, but by all measures he is principled, thoughtful, knowledgeable and smart. His inclination has been to follow the law as written and not to read his personal viewpoint into it. I can certainly understand Democrats voting against him, but the filibuster seems extreme against such a candidate.

    2) If the Democrats use the filibuster and the Republicans can’t get the 60 votes needed for cloture it’s almost guaranteed that the Republicans will invoke the “Nuclear Option” and then confirm Gorsuch. Not only will the Democrats lose this battle, but any future Supreme Court candidate who is nominated by President Trump will have a much smoother path to confirmation, even if a stronger case could be made against him or her (and the Senate’s Republican majority still exists). Picking this fight will not only result in a Democratic loss, but in a future weakening of their hand.

    3) Many centrist voters may be turned off by what they view as a dirty campaign against a decent person.

    The only conclusion I can reach is that the Democrats (who aren’t stupid, despite what some may believe) feel that Republican usage of the Nuclear Option will cause many voters to revolt against the Republican’s control of government and help the Democratic party in future elections. Yes, the Dems will get their noses bloodied on this one with zero chance of a win, but in the long run they feel it will pay off.

    That’s what I think, anyway. Am I missing something here?

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