WASHINGTON, D.C. — Put on your hazmat suits.
Senior aides to Republican and Democratic senators are saying they expect Republicans to invoke the “nuclear option” rule change in order to get Neil Gorsuch confirmed as the ninth Supreme Court justice next week.
“It’s a virtual certainty at this point,” a senior aide to a GOP Senator told VICE News, citing Democratic resistance.
The rarely used procedure would allow the Senate to change its usual rules to allow confirmation of a justice with a simple majority. At the moment, a filibuster of a Supreme Court nominee can only be overcome with 60 votes, which would currently require eight Democrats to vote yes. Democrats changed the filibuster rules in 2013 to require only 51 votes for other judicial and Cabinet positions but maintained the 60-vote threshold for Supreme Court nominees.
With Democrats under pressure from the grassroots to oppose the nomination —mainly because Republicans blocked Obama nominee Merrick Garland last year — and Republicans eager for a victory in the aftermath of their failed attempt to repeal Obamacare last week, Senate aides said that changing the rules of the filibuster feels inevitable.
“I’m ready to change one big [rule] right now: 51 votes to confirm the Supreme Court [justice],” Republican Sen. Richard Shelby of Alabama told BuzzFeed News. President Donald Trump has also repeatedly said that Senate Republicans should “go nuclear” if Democrats resist Gorsuch, a Denver-based U.S. Circuit Court Judge for the past 10 years.
Besides the resentment over GOP refusal to give Garland a hearing, many Democrats also argue that they disagree with Gorsuch’s judicial philosophy toward money in politics and corporations and so he should not be on the bench. This argument is a departure from recent voting on Supreme Court nominees where deference was given to the president. The liberal Ruth Bader Ginsberg and the conservative Antonin Scalia, for example, both received over 95 votes in the Senate.
Senate Majority Leader Mitch McConnell, who in the past has spoken of his respect for the Senate’s rules, privately told Republican senators this week that they should “feel no guilt” about changing the Senate rules, according to Politico. But publicly, McConnell has implicitly said they are willing to change the rules by confidently saying that Gorsuch will be confirmed April 7 before Congress is set to leave for its two-week Easter recess, regardless of what Senate Democrats do.
McConnell’s confident projections have been echoed by more “maverick” Republican senators like John McCain of Arizona and Lindsey Graham of South Carolina, who have said Gorsuch will end up on the Supreme Court.
And leaders of the progressive base say they will confront any Democrat during the upcoming two-week recess if he or she doesn’t filibuster Gorsuch. “This is a line in the sand for us,” Sarah Dohl, a co-founder of the grassroots group Indivisible that has organized hundreds of congressional town halls across the country, told VICE News.
So far none of the 48 senators who caucus with the Democrats have committed to voting for Gorsuch — not even senators from red states, like Claire McCaskill of Missouri, who told reporters on a conference call yesterday that she was still doing her “homework.” On the left, Sen. Jeff Merkley of Oregon said before Trump’s inauguration that he would oppose any nominee who wasn’t Merrick Garland, President Obama’s nominee that Republicans refused to consider for the court. Senate Minority Leader Chuck Schumer announced last Thursday that he will vote against and filibuster Gorsuch and encourage his colleagues to do the same.
Some Senate Democrats have tried to parse the issue, saying they will vote against Gorsuch but not join a filibuster. “I am not inclined to filibuster, even though I’m not inclined to vote for him,” Democrat Patrick Leahy of Vermont told a local reporter Sunday night. Dohl said that Indivisible sees that as a distinction without a difference and that voting against Gorsuch also means filibustering him.
Even with these political dynamics at play, Schumer said he still isn’t sure Republicans have the votes to change the rules. In January, before Trump’s inauguration, Schumer told MSNBC’s Rachel Maddow that he believed it would be difficult for Republicans to invoke the nuclear option because “there are a handful of Republicans who believe in the institution of the Senate and don’t change the rules.” His office told VICE News he still believes that to be the case and that the nuclear option isn’t a sure thing.
“There’s no incentive for Democrats to vote for Gorsuch if McConnell is going to use the nuclear option for the next Supreme Court nominee anyway,” said a senior aide to a Democratic senator.
There does appear to be at least one Republican senator queasy about the consequences of changing the rules. Sen. Bob Corker of Tennessee told BuzzFeed News that future presidents “can nominate somebody, an extreme person, because they know, after what’s getting ready to take place over the next 10 days in all likelihood, they will no longer be bound by having to put someone forth that would at least meet some type of minimal criteria.”
Still, Corker seemed resigned to the nuclear option if Democrats filibuster: “We all know how this movie ends.”
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