High stakes for high court pick
Both sides weigh lasting change in must-win fight
WASHINGTON — One of the U.S. Senate’s most serious jobs — confirming the president’s choice for a lifetime appointment to the Supreme Court — has devolved into a game of political chicken.
Senators are heading toward an institution-defining showdown this week as Democrats promise to try to block President Donald Trump’s nominee, Judge Neil Gorsuch, with a filibuster, a rarely seen maneuver for high court appointments.
Republicans are threatening to respond by changing long-standing Senate rules to circumvent the 60 votes that would be needed to overcome a filibuster. Instead they would allow confirmation with a simple majority.
The outcome has the potential to not only shape the future of the Supreme Court — which has been without a full bench since the sudden death of Justice Antonin Scalia last year — it also could crush one final vestige of bipartisanship in the Senate.
“It churns our stomach,” said Sen. Mike Rounds, RS.D., as senators weighed their options last week.
Pressed if they were really ready to invoke the so-called nuclear option to ensure Gorsuch is confirmed, many GOP senators last week demurred.
But others — notably seasoned institutionalists, including Sen. Orrin Hatch of Utah, the senior-most Senate Republican — appear ready to overhaul the rules for Trump.
“Judge Gorsuch is going to be confirmed. By any means necessary,” Hatch said in a statement.
The battle over the Supreme Court seat was always expected to be a partisan affair in today’s heated political climate. But the polemics intensified after the Republican majority denied President Barack Obama’s nominee, Judge Merrick Garland, a confirmation hearing ahead of last year’s presidential election.
As Trump’s first 100 days have faltered, now the Gorsuch nomination is being viewed as a must-win for Republicans. For Democrats it has become a proxy for a broader opposition to Trump’s administration and the Republican agenda.
Senate Minority Leader Chuck Schumer, D-N.Y., is trying to hold the Democratic minority together to deny Republicans the 60 votes needed to advance Gorsuch past a filibuster.
Republicans, with their 52-seat majority, must peel off eight Democrats to overcome the filibuster. If they are unable to so, Senate Majority Leader Mitch McConnell, R-Ky., is expected to do as former Senate Majority Leader Harry Reid, D-Nev., did in 2013, when he used the Democratic majority to change Senate rules to allow a simple majority vote for other types of judicial nominations. Reid said the move was needed to overcome Republican filibusters.
Neither McConnell nor Schumer will say, exactly, how many senators they have on their side.
Sens. Claire McCaskill of Missouri, Richard Blumenthal of Connecticut and Brian Schatz of Hawaii have announced their opposition to Gorsuch, a 49-year-old federal appeals court judge in Denver, whose conservative rulings make him an intellectual heir to the justice he would replace. Illinois’ two Democratic senators, Dick Durbin and Tammy Duckworth, have also announced their support for a possible filibuster.
McConnell, for his part, has vowed that Gorsuch will be confirmed Friday, before the two-week spring recess. “I’m confident he’ll be confirmed,” he said.
Schumer was equally certain. “It’s going to be a real uphill climb for him to get those 60 votes,” he said.
Republicans went into the court fight thinking their task would be easy enough. Gorsuch, the affable appellate judge, was viewed as a conservative who might be able to attract some Democratic votes.
Republicans also expected the politics would be on their side. Democrats from the red states that Trump won, particularly those up for re-election in 2018, they reasoned, would be more interested in bucking their party than crossing the new president.
But since Trump nominated Gorsuch, the dynamics have shifted.
Trump’s approval rating continues to nose-dive amid the FBI probe into possible collusion between his campaign and Russia, and his missteps over the travel ban and failed repeal of the Affordable Care Act.
At the same time, Democrats quickly shifted from being chastened by their November electoral loss to emboldened — even pressured — by the sudden outpouring of liberal resistance to Trump’s presidency, particularly street protests that erupted in the weeks after the inauguration.
Some of the more centrist Democrats in the Senate, including Heidi Heitkamp, D-N.D., and Joe Manchin, D-W.Va., have said they will vote to confirm Gorsuch.
The risk for Democrats, of course, is that not only might they lose the confirmation battle, but their filibuster could trigger a chain of events that changes the operations of the Senate in perhaps irreparable ways.
Experts say moving away from a 60-vote threshold to overcome filibusters of Supreme Court picks would make it easier for presidents in the future to select more ideologically extreme justices.