The Senate
sets the stage for Judge Neil Gorsuch to be confirmed to the Supreme Court this week, but only after a partisan battle that likely will lead to changing the Senate rules.
WASHINGTON — The Senate’s Republican and Democratic leaders have set the stage for Judge Neil Gorsuch to be confirmed to the Supreme Court this week, but only after a partisan battle that likely will lead to changing the Senate’s rules.
On Monday, the Senate Judiciary Committee is expected to vote to send the Gorsuch nomination to the full Senate. Debate in the Senate is expected to start on Tuesday, with a final decision by week’s end.
Senate Minority Leader Chuck Schumer, D-N.Y., said Sunday on NBC’s “Meet the Press,” that it is “highly, highly unlikely” that President Donald Trump’s nominee will get the 60 votes needed to cut off debate on the Senate floor under current rules.
So far, only three Democratic senators — Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana — have said they will vote to end debate and support Gorsuch.
Eight Democrats would need to join all 52 Republicans to reach the 60-vote cutoff, and vote counters on both sides say that’s unlikely to happen.
Regardless, there will be a confirmation vote this week, and Gorsuch will be confirmed, said Senate Majority Leader Mitch McConnell, R-Ky.
“What I can tell you is that Neil Gorsuch will be confirmed this week. How that will happens depends on our Democratic friends,” he said, also on “Meet the Press.”
McConnell has made clear that if pressed, he will trigger a change in the rules and allow Supreme Court nominees from here on out to be confirmed on a majority vote. With 52 Republicans in support, McConnell is confident he can accomplish that change.
McConnell blamed the Democrats for using filibusters to block votes on several of President George W. Bush’s nominees to federal appeals courts and then, in 2013, for changing the rules after Republicans blocked several of President Barack Obama’s nominees. At that time, Democrats used their majority to allow lower court nominees and executive-branch officials to be approved on a simple majority vote.
That “was terrible for the Senate,” McConnell said, but it set a precedent for changing the rules for confirming all judges, including justices of the Supreme Court.
Filibusters for judicial nominees were not envisioned prior to 2001, McConnell said. Justice Clarence Thomas, who he described as “the most controversial Supreme Court nominee in history,” was approved on a 52-48 vote in 1991 when Democrats were in the majority in the Senate, he noted.
McConnell’s statement that filibusters were never used, or even thought of, before 2001 — a claim he has made several times — is not accurate. President Lyndon Johnson’s effort to elevate Justice Abe Fortas to chief justice was defeated by a filibuster in October 1968, although that filibuster, unlike the current one, was a bipartisan affair.
Fortas’ nomination came after Chief Justice Earl Warren announced his intention to retire. The nominee was blocked by a coalition of Republicans and conservative Southern Democrats. After the filibuster blocked Fortas, the chief justice’s seat was filled the next year when newly elected President Richard Nixon chose Warren Burger for the post.
Schumer blamed McConnell and the Republicans for refusing to hold a hearing or a vote last year on Judge Merrick Garland, Obama’s nominee to fill the seat vacated when Justice Antonin Scalia died last year.
Schumer said the refusal to consider Garland broke with 230 years of tradition.
That’s also not accurate. In the 19th century, the Senate more than once took no action on Supreme Court nominations, in a few instances keeping vacancies open for years. That’s not been the practice since the start of the 20th century, however.