WASHINGTON — Senate Majority Leader Mitch McConnell is claiming he has the votes necessary to thwart a planned Democratic filibuster of President Donald Trump’s Supreme Court nominee, as a showdown draws near that could change the Senate, and the court, for generations.
“They seem determined to head into the abyss,” the Kentucky Republican said of Democrats as debate began Tuesday over Judge Neil Gorsuch’s nomination. “They need to reconsider.”
Democrats made clear they had no plans to do so, and blamed Republicans for pushing them to attempt a nearly unheard of filibuster of a qualified Supreme Court pick. Forty-four Democrats intend to vote against proceeding to final confirmation on Gorsuch, which would be enough to block him under the Senate’s existing parliamentary rules that require 60 votes to advance a nomination.
But McConnell intends to act unilaterally with the rest of the 51 other members of the GOP Senate conference and change the rules to eliminate the 60-vote threshold so that it would require just a simple majority to install Gorsuch on the high court bench, as well as all future Supreme Court nominees. Asked if he has the votes to do that, given misgivings voiced by many Republicans, McConnell answered simply “yes.”
Democrats tried mightily to keep the focus on Republicans’ plans to change Senate rules, rather than on their own plans to obstruct a nominee who would likely have gotten onto the court easily with no filibuster in earlier and less contentious political times.
And to dramatize their position, they gave speeches holding the Senate into session well into the early morning hours Wednesday. Appearing before a poster-size portion of the Constitution with the words “We the People” prominently displayed, Sen. Jeff Merkley of Oregon, held the floor at length, offering critiques of some of Gorsuch’s decisions as a federal appellate court judge, to push his party’s views.
Schumer said, “Senator McConnell would 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. That could not be further from the truth.”
In fact, a Senate rules change does appear to be the lone route that Republicans have to put Gorsuch on the court. And despite claims from Schumer and others that Trump and Republicans could go back to the drawing board and come up with a more “mainstream” nominee, it seems unlikely that any nominee produced by Trump would win Democrats’ approval.
On Tuesday evening McConnell officially filed a “cloture” motion, the procedural step designed to end debate on a nomination and bring it to a final vote. That started the clock toward a showdown on Thursday, when Democrats are expected to try to block Gorsuch, at which point Republicans would respond by enacting the rules change. The change is known on Capitol Hill as the “nuclear option” because of the potential repercussions for the Senate and the court.
For the Senate, it would mean that Supreme Court nominees in future could get on the court with no assent from the minority party, potentially leading to a more ideologically polarized court. More immediately, Gorsuch’s confirmation to fill the vacancy on the court created by the death of Justice Antonin Scalia 14 months ago would restore the conservative voting majority that existed before Scalia’s death and could persist or grow for years to come.
And for the Senate, lawmakers of both parties bemoaned the further erosion of their traditions of bipartisanship and consensus. Some were already predicting that they would end up eliminating the 60-vote requirement for legislation, as well as nominations. But McConnell pledged Tuesday that this would not happen on his watch.
He drew a distinction between legislation being filibustered and the filibuster being used against nominees, something that is a more recent development.
Gorsuch now counts 55 supporters in the Senate: the 52 Republicans including McConnell, along with three moderate Democrats from states that President Donald Trump won last November — Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana. A fourth Senate Democrat, Michael Bennet from Gorsuch’s home state of Colorado, has said he will not join in the filibuster against Gorsuch but has not said how he will vote on final passage.
Gorsuch, 49, is a 10-year veteran of a federal appeals court in Denver where he’s compiled a highly conservative record that’s led Democrats to complain that he too often sides with corporations without regard to the humanity of the plaintiffs before him.