By the week’s end, two events seem all but inevitable: Neil Gorsuch will be confirmed to the US supreme court and, to do so, Republicans will change longstanding Senate rules that could fundamentally reshape the institution that proudly refers to itself as the “world’s greatest deliberative body”.
Leaders of both parties on Tuesday appeared resigned to the fate that Republicans will invoke the so-called nuclear option and eliminate the filibuster for nominees to the nation’s highest court. The unprecedented step would enable supreme court picks to be confirmed with a simple majority vote, as opposed to the traditional 60-vote threshold.
But the significance of a potentially historic shift in procedure was diminished by an almost muted response on both sides of the chamber. Even as members placed blame on the opposing party for precipitating the showdown, theatrics mostly gave way to a simple shrug of the shoulders.
Mitch McConnell, the Senate majority leader, told reporters on Tuesday that Republicans had the necessary votes to change the rules if Democrats were to filibuster Donald Trump’s first supreme court nominee. But he signaled Democrats were in essence forcing his hand.
“It’s not too late for our friends to do the right thing,” McConnell said in a speech on the Senate floor.
“The future of the Senate will hang on their choice.”
The Senate judiciary committee on Monday voted 11-9 along party lines to send Gorsuch’s nomination to the full Senate for debate. The vote came as Democrats confirmed they had the requisite 41 votes to block Gorsuch – nominated by Trump to fill the vacancy left by the death of Antonin Scalia last year – from advancing further.
Chuck Schumer, the Senate minority leader, urged the Republicans to pull Gorsuch’s nomination, which he said is “doomed to fail”, and work with Democrats to select a mainstream nominee that would earn the requisite 60 votes to overcome a filibuster.
“Senator McConnell will have the world believe that his hands are tied – that the only option after Judge Gorsuch doesn’t earn 60 votes is to break the rules to change the rules,” Schumer said during a press conference on Tuesday. “That could not be further from the truth.”
The combustible atmosphere stems in large part from the refusal by Republicans to grant even a hearing, much less a vote, to Merrick Garland, who was chosen by Barack Obama to succeed Scalia. Republicans pointed to the presidential election as justification for barring Obama’s nominee from consideration, prompting a vacancy that now stands at more than 400 days and is the longest of the supreme court in nearly 50 years.
Democrats insist their opposition is more substantive than retribution for the treatment of Garland. But many of them were quick to liken McConnell’s decision to deny Garland a vote as akin to a filibuster.
“We did not get our nominee when Senator McConnell broke 230 years of Senate precedent and didn’t even allow Judge Garland a hearing and a vote,” Schumer said on Tuesday.
“We lost one. They lost one.”
Republicans would have required the support of eight Democrats to overcome a filibuster. But only three Democrats, Joe Manchin, Heidi Heitkamp and Joe Donnelly – all facing re-election in heavily conservative states carried by Trump in November – have said they intend to support Gorsuch. A fourth, Michael Bennet of Colorado, said he did not support a filibuster but declined to say if he would vote for Trump’s nominee.
Conservative groups have sought to mount pressure on other vulnerable Democrats by pouring as much as six figures into advertising across states that are up for grabs in the 2018 midterm elections. But Democrats defending their seats next year must similarly contend with a liberal base that has been galvanized by Trump’s ascension to the White House.
Delaware senator Tom Carper, who ranks among the safer incumbents, said the phone calls and emails from constituents were overwhelmingly in favor of opposing Gorsuch. He bemoaned that Trump had not made an effort to corral feedback from both parties while making his choice, whereas Garland had been dubbed as a “consensus choice” even by some Republicans years before Obama nominated him.
“In an earlier day, we had presidents and leaders in Congress who would actually sit down and talk through these issues,” Carper said.
Democrats also disputed comparisons to 2013, when their party under then Senate majority leader Harry Reid triggered the “nuclear option” by eliminating the filibuster for executive branch and federal judicial nominees. That move was the result of a level of obstruction by Republicans under Obama that outpaced any previous administration, they said.
The 2013 rules change nonetheless came back to haunt Democrats with the arrival of the new administration, leaving them with no tools at their disposal to block Trump’s nominees to the cabinet. Republicans, for their part, have shown no willingness to challenge the president despite voicing concerns with some of his picks to lead various government agencies.
John McCain, who in the past had worked to preserve the filibuster, said the Senate was simply too polarized to reach an agreement on the supreme court. Despite his own reservations, the Arizona senator said he would vote for a rules change if that’s what it takes to confirm Gorsuch – but not without sounding the alarm.
“This is a severe body blow to the Senate as an institution,” McCain said.