The Senate is set for a historic clash Thursday over the confirmation of Judge Neil Gorsuch to serve on the U.S. Supreme Court in a showdown that could bring a fundamental change in the chamber’s rules.
Senate Democrats are vowing to block consideration of Gorsuch on the Senate floor in a procedural vote to advance the 49-year-old judge’s nomination. Once that happens, Republicans are expected to change Senate rules by allowing Gorsuch and all future Supreme Court nominees to be confirmed by a simple majority rather than the standing 60-vote threshold.
A final confirmation vote on Gorsuch is not scheduled until Friday, when 52 Republicans and at least three Democrats – from states won by Trump in last year’s election – are expected to vote to have him replace the late Antonin Scalia on the high court.
But the next 24 hours could be among the most bitter in the Senate’s modern history.
“Democrats are bowing to hard-left special interests that can’t get over the results of the election and thus are demanding complete Democratic opposition to everything this president touches,” Senate Majority Leader Mitch McConnell, R-Ky., said Wednesday on the Senate floor.
“The answer isn’t to change the rules. It’s to change the nominee, as presidents of both parties have done when a nominee fails to earn confirmation,” Senate Minority Leader Charles E. Schumer, D-N.Y., said Wednesday. “Instead, my Republican friends seem intent on breaking the rules for Judge Gorsuch, and are trying to find reasons to justify it.”
Debate on Gorsuch’s nomination officially began Tuesday and was dominated into Wednesday by Sen. Jeff Merkley, D-Ore., one of the Senate’s most liberal members, who spoke overnight for more than 15 hours against Gorsuch.
Thursday’s showdown is expected to begin around 11 a.m., when senators will convene for a “cloture vote” – a special feature of Senate procedure that ends debate on a bill or nomination, allowing the process to move forward toward a final vote.
Sixty senators must agree for the debate to end. But with 44 Democrats vowing to vote no on cloture, Republicans are poised to fall short. That temporary victory for Democrats is expected to spark contentious procedural maneuvering.
McConnell is then expected to begin the process of ending the minority party’s ability to filibuster Supreme Court nominees. He is likely to raise a “point of order” to suggest that Gorsuch’s nomination could be advanced with a simple majority of votes rather than the usual 60.
The focus will suddenly turn toward the senator presiding over the chamber. That senator will rule against McConnell’s point of order because it contradicts current Senate rules.
Then will come the crucial moment.
McConnell will challenge the ruling of the chair by appealing it to the full Senate. In essence, he’ll be asking senators to vote on whether the rules should change – whether a simple majority of senators should be able to end debate on a Supreme Court nomination. No Republican has said they oppose McConnell’s decision, so the rules change is expected to pass along party lines.
Democrats made similar changes to the rules in 2013, punishing Republicans for blocking former president Barack Obama’s nominees. The Democrats pushed through a revision to confirm all executive branch nominees and lower-court picks with a simple majority vote. But Democrats did not include the Supreme Court in the rules change, believing that lifetime appointments to the nation’s highest court should be handled differently.
Gorsuch’s confirmation was announced in late January and continued with three days of confirmation hearings that began March 20 in the Senate Judiciary Committee. While Gorsuch allies praised his demeanor, Democrats came away unsatisfied with his answers on issues they expected to come before the court.
In one of the few dramatic moments from the hearings, Sen. Sheldon Whitehouse, D-R.I., confronted the nominee about the outside spending that had promoted his nomination, and whether he would owe his job to anonymous donors.
“You’d have to ask them,” Gorsuch said.
“I can’t,” Whitehouse said, “because I don’t know who they are.”
When Whitehouse returned home for a town hall meeting, he was welcomed with a standing ovation for his question – and afterward, he told reporters that he was committed to blocking Gorsuch.
“Gorsuch did himself no favors in that hearing,” said Ian Millhiser, a senior fellow at the Center for American Progress. “He mansplained fairly basic concepts to women senators. He pushed way too hard on the ‘I’m not going to express a view about anything, ever’ fallback – much harder than previous nominees. And then, after the Supreme Court unanimously overturned one of his opinions, he defended himself by misrepresenting his own opinion.”
After the hearing, just four Democrats announced that they would oppose a Gorsuch filibuster. Seven of the Democrats from Trump-won states opposed him, all comfortably couching their decision with the issues they expected him to rule on.
“With Judge Gorsuch on the bench, I am deeply concerned that dark money will continue to drown out the voices and votes of citizens,” said Sen. Jon Tester, D-Mont., whose state passed tough campaign finance laws that were struck down by a Republican-appointed judge.
Some Republicans say they could sense for months that Democrats were going to have the votes to block Gorsuch.
“I could count, sure,” said Sen. John McCain, R-Ariz. “But I had hoped that we could do what we had done in the past, and that was reach some agreement. And we haven’t, so it’s permanent damage to the body.”
Senate Judiciary Committee Chairman Charles E. Grassley, R-Iowa, said it became clear to him that Gorsuch was not going to have the 60 votes necessary to break a Democratic blockade “at the end of the questioning” during his confirmation hearing.
Republicans continued to sing Gorsuch’s praises ahead of the expected Thursday clash. Sen. Mike Rounds, R-S.D., called Gorsuch “one of the finest judges our nation has to offer” and said he would uphold “justice, fairness and an interpretation of what the law is.”
A single-party filibuster has never successfully blocked a Supreme Court nomination. A bipartisan coalition used the procedural vote to defeat Abe Fortas’s 1968 nomination to be chief justice. After his marathon speech, Merkley admitted that he would have preferred that the parties come to a deal. But he saw partisan rancor coming from the other side.
“We labored for the better part of a year, working with our Republican colleagues. It wasn’t like what’s going on now,” he said. He snapped his fingers. “Just like that.”
(c) 2017, The Washington Post · Ed O’Keefe