Susan Walsh / AP
There’s an easy way and a hard way for the Senate to confirm Judge Neil Gorsuch to the Supreme Court, and it appears Democrats are going to make Republicans do it the hard way.
That Gorsuch would ultimately take the late Justice Antonin Scalia’s seat on the high court has scarcely been in doubt in the weeks since President Trump nominated him 11 days after he took office. A well-regarded judge on the 10th Circuit Court of Appeals in Colorado, Gorsuch has a legal resumé tailor-made for the Supreme Court, he’s won nearly universal praise from conservatives, and he emerged from his confirmation hearings with his reputation largely intact.
The only question has been whether Gorsuch would win the eight Democratic votes necessary to reach 60 and defeat a filibuster, or whether Democratic resistance would force Republicans to change Senate rules, invoke what’s known in Washington as “the nuclear option,” and confirm Gorsuch with a simple majority of 51 votes. Statements of opposition have flooded in from Democrats this week, making the answer clearer every day: Gorsuch is likely to fall short of 60 votes, and Republicans will have to jam his nomination through the Senate on their own.
What Does Judge Gorsuch Believe?
Will Republicans go nuclear? There’s little doubt that they will.
Senate Majority Leader Mitch McConnell, a man known inside the Capitol for choosing his words as carefully as anyone in politics, has not explicitly outlined how Republicans would respond to a Democratic filibuster. But his statements on the nomination have been so declarative, so free of hedging that they’ve left no question about his plans. When McConnell said on Tuesday, “Judge Gorsuch is going to get confirmed,” it was less a prediction than a guarantee.
McConnell’s determination is rooted in a simple reality: For Republicans in general and McConnell in particular, there is no higher political priority than maintaining a 5-4 conservative majority on the Supreme Court. Cutting taxes, repealing the Affordable Care Act, eliminating regulations, nor any of the promises they’ve made in recent elections come close. For a generation, the Court has been the right’s ultimate prize, so much so that McConnell engineered an unprecedented Republican blockade last year to deny former President Barack Obama a chance to fill Scalia’s seat with Merrick Garland, a nominee whose qualifications, on paper, matched those of Gorsuch.
It is McConnell’s treatment of Garland that, more than anything else, has hardened the Democratic opposition to Gorsuch. The GOP’s denial of even a hearing for Obama’s nominee a year ago was seen as a galling, even cynical, break with Senate norms, but one that Democrats were confident voters would rectify with the election of Hillary Clinton. Trump’s victory last November, however, cast McConnell’s move in a new light, and liberal activists are demanding revenge for what they now consider a stolen Supreme Court seat.
If at least 41 Democrats try to block a final vote on Gorsuch’s nomination, McConnell would need all but two of the GOP’s 52 senators to support a rules change lowering the threshold to end debate and defeat the filibuster. If executed, that move would remove an exception for the Supreme Court that Democrats left in place when they eliminated the 60-vote threshold for executive-branch and most judicial nominees when they held the majority in 2013. At the time, Democrats said a lifetime appointment to the Supreme Court should still demand bipartisan support, forcing presidents to choose nominees that could achieve a consensus in the Senate.
But the trend toward partisanship in court appointments, though lamented by both parties, has been building for decades, beginning with the defeat of President Ronald Reagan’s nomination of Judge Robert Bork to the Supreme Court in 1987. Justice Clarence Thomas won his seat with just 52 votes in 1991 (though, as Republicans now point out, Democrats allowed him an up-or-down vote without a filibuster). Democrats blocked lower-court nominees of President George W. Bush, and Republicans did the same to Obama before then-Majority Leader Harry Reid led his caucus in invoking the nuclear option for most nominees. Had Clinton won the presidency with a Democratic majority in the Senate, Senator Tim Kaine, the would-be vice president, had already warned that Democrats would have changed the rules if Republicans tried to block her nominee for Scalia’s seat.
Some Democratic senators initially considered making only a half-hearted effort to defeat Gorsuch, hoping to preserve the filibuster option for a future high-court vacancy that would actually shift the ideological balance on the bench. (Replacing Scalia with another conservative maintains the status quo.) Yet progressives ridiculed that idea. Republicans, they argued, would not hesitate to nuke the 60-vote threshold for any Trump nominee, so Democrats might as well force them to do it with Gorsuch. “McConnell will go nuclear at the first opportunity. There’s just no question,” said Adam Jentleson, a former top aide to Reid who is now a senior strategist at the Center for American Progress.
Minority Leader Charles Schumer adopted that view in recent weeks, and so have most of his colleagues. Thirty of the party’s 48 members now support a filibuster against Gorsuch, including more moderate members like Senator Bill Nelson of Florida, who is up for reelection next year. McConnell has said the Senate will confirm Gorsuch by the end of next week, ahead of a two-week congressional recess. The Democratic arguments against Gorsuch have run the gamut. Many senators have gamely stuck to the view that he is simply too conservative a pick, citing his record as a jurist and as a political appointee in Republican administrations.
Several members of the Judiciary Committee took issue with his performance at his hearings last week, which they found evasive and condescending, if not overly controversial. And others have called for the vote to be put off until the investigations of the Trump campaign’s ties to Russia have been completed, warning that a president whose legitimacy might be tainted should not get a lifetime appointment to the nation’s highest court.
But mostly, the gathering Democratic opposition to Gorsuch is a reflection of the coarse political moment, as senators face pressure from an angry party base seething over the Republicans’ treatment of the martyred Garland and the likelihood that a president elected under a cloud of suspicion and without popular support will be able to secure a conservative majority on the Supreme Court for decades more to come.
Their goal over the next weeks is to force even a few Republicans to think twice about Gorsuch and the precedent of confirming a nominee without bipartisan support. “The answer is not to change the rules. It’s to change the nominee,” Schumer said Wednesday. “We believe there are Republicans who are reluctant to change the rules, and we hope they won’t do it.”
While a few GOP senators, including John McCain of Arizona and Bob Corker of Tennessee, have voiced reservations about invoking the nuclear option to confirm Gorsuch, none have come out against it. “Feel no guilt,” McConnell told his members about the prospect, according to Politico. If Republicans appear to have the will to confirm Gorsuch by any means necessary, Democrats can at least try to take the sheen off Trump’s victory by painting it as another move flouting institutional norms. “It’s an ugly vote,” Jentleson said.
But as polarization and partisanship have steadily overtaken the confirmation process, neither party is innocent. Democrats may have tried to preserve the filibuster for the Supreme Court four years ago, but they knew it probably wouldn’t last. They started the slide toward majority rule for nominees, and next week, they’ll likely make Republicans finish it.