The US Senate made a historic rules change on Thursday that will dramatically alter nominations to the supreme court. By a vote of 52-48 along party lines, Republicans voted to end to the filibuster for supreme court nominations, forever changing how justices are confirmed to the country’s highest court. .
The move teed up a final confirmation vote for Neil Gorsuch on Friday and thwarted efforts by Democrats to block Donald Trump’s nominee. Friday’s vote will bring to a close a year-long feud over the supreme court vacancy left by the late Justice Antonin Scalia.
The drama began on Thursday morning when a majority of Democrats voted to block Gorsuch’s confirmation, pushing Republicans to begin the process of changing the Senate rules. As the Senate majority leader, Mitch McConnell, announced: “This will be the first and last partisan filibuster of a supreme court nominee.”
Republicans have long threatened to invoke the so-called “nuclear option” if Democrats attempted to filibuster Gorsuch, who is Trump’s first nomination to the supreme court. Although Gorsuch, who has served on the 10th circuit court of appeals for more than 10 years, has been deemed “well-qualified” by the American Bar Association, Democrats have raised issues with some of his decisions, which they see as unduly favorable to corporate interests.
However, their biggest objection to Gorsuch’s nomination is the Republican treatment of Judge Merrick Garland, whom Barack Obama first nominated to the supreme court in March 2016. Senate Republicans refused to even hold a hearing on Garland’s nomination, citing the fact that it was an election year.
“We should have seen this coming last year,” Senator Chris Murphy, a Democrat from Connecticut, resignedly told reporters on Capitol Hill.
“Republicans telegraphed through their treatment of Merrick Garland that they were willing to do anything in order to get their person on the supreme court, so this shouldn’t come as a shocker.”
The fight over Garland proved a breaking point in an increasingly partisan Senate, where Democrats had already invoked the nuclear option in 2013 for all nominations other than those for the supreme court, after Republicans refused to confirm any nominee to the DC circuit court of appeals.
In dueling speeches before the vote to end debate on Gorsuch’s nominations, Democrats and Republicans took turns blaming members of the other party for the state of affairs.
The Democratic leader, Chuck Schumer, insisted “the responsibility for changing the rules will fall on the Republicans and Leader McConnell’s shoulders”. In contrast, McConnell pointed to Schumer’s apparent willingness a decade ago to filibuster judicial nominees of George W Bush.
“I know the Democratic leader would rather not revisit the circumstances that brought us to this moment,” McConnell said.
The longstanding rancor sparked an awakening even among veterans and so-called Senate “institutionalists”.
Senator John McCain of Arizona, who in the past worked to broker deals to preserve the filibuster, said he would join his Republican colleagues in supporting the nuclear option.
Senator Pat Roberts, a Republican from Kansas who has served in the chamber for two decades, said he regretted that gridlock over Gorsuch had reached its tipping point, but he foresaw no other option but to change the rules and then move on.
Senator Orrin Hatch, a Utah Republican who has served in the chamber for more than 40 years, said Democrats had made a “tremendous blunder” in filibustering Gorsuch as opposed to someone who would change the ideological makeup of the court. Hatch was in 2010 a supporter of Obama’s stalled nominee, Merrick Garland, and even suggested Obama nominate him last year.
“The next one, one way or the other, can help change the court pretty dramatically,” Hatch said, referring to the next vacancy on the Supreme Court. “If I was the Democrats, I would have concentrated on that and not blown the issue here.”
But asked if he would have supported changing the rules in that case, Hatch replied: “Well, yeah.”
Senator Ted Cruz, a Republican of Texas who expressed a willingness to indefinitely block the supreme court nominee if Hillary Clinton won the election, chastised Democrats on Thursday for attempting to stop Gorsuch’s nomination.
“The Senate Democrats’ position of blanket obstruction to everything – cabinet nominees, legislation, procedural motions – is unprecedented in Senate history,” Cruz told reporters. “It is driven by a very distinct desire: a fear of the radical left and being primaried from the left.”
The process for invoking the nuclear option involves several steps. The first was a vote to end debate on Gorsuch’s nomination, called a cloture vote. This required a super-majority of 60 in the Senate; a filibuster is an effort to block cloture. Once that was done, McConnell made a point of order that only a majority of 51 and not a super-majority of 60 was needed for cloture. A second cloture vote then occurred under the new rules, ending the filibuster.
Four Democrats voted for cloture on the initial vote to end debate on Gorsuch: Michael Bennet of Colorado, Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia. Bennet, who represents Gorsuch’s home state, changed his cloture vote after the nuclear option was invoked. The remaining three Democrats all represent deep red states and face tough bids for re-election in 2018.
With the procedural fight over, a final vote is expected Friday on Gorusch’s nomination.
Only one previous supreme court nominee, Abe Fortas, had been successfully filibustered. Fortas, a sitting associate justice who had been nominated to replace Earl Warren as chief justice, was blocked by the Senate over questions about his outside income and role advising President Lyndon Johnson while serving on the bench.
Democrats likened the refusal by Republicans to grant Garland even a hearing, much less a vote, to a filibuster in its own right.
Senator Jeff Merkley, a Democrat from Oregon, who held the Senate floor for more than 15 hours on Tuesday and Wednesday to protest against Gorsuch’s nomination, said Democrats had done everything within their power to try to avoid this outcome.
“The Republicans are determined to destroy the Senate and the supreme court all at once,” he said, jogging up the stairs on the way to filibuster the nomination.
For all the acrimony over the unprecedented turn of events, even some stalwarts of the Senate conceded the spectacle was simply a fait accompli for an institution where civility and tradition have deteriorated with each passing year.
Senator Dianne Feinstein, a Democrat from California who has served for 25 years, said the bitterness over Gorsuch was “mild” when compared with the treatment of Garland by Republicans.
“They denied President [Obama] a year of his presidency,” she said. “Everybody knew that there had to have been a legacy to it.
“This is the hard part,” she added. “What goes around comes around.”