‘Nu­clear op­tion’ may be only op­tion.


Democrats ap­peared Sun­day to have ral­lied enough sup­port for a fil­i­buster of Judge Neil Gor­such, forc­ing Repub­li­cans to pre­pare to trig­ger the “nu­clear op­tion” to in­stall Pres­i­dent Trump’s first nom­i­nee to the U.S. Supreme Court this week.

Sen. Jon Tester’s an­nounce­ment Sun­day that he’ll join fel­low Democrats’ fil­i­buster was the lat­est sig­nal that Repub­li­cans prob­a­bly won’t be able to rally the 60 votes needed to over­come the block­ade on Judge Gor­such, a well-re­garded ju­rist who’s been en­snared by anti-Trump pol­i­tics.

“Looks like we have the 60 — the votes to pre­vent Gor­such from get­ting on,” Se­nate Mi­nor­ity Leader Charles E. Schumer had said ear­lier Sun­day on NBC’s “Meet the Press,” claim­ing vic­tory in the fil­i­buster fight.

Repub­li­cans said no mat­ter what Democrats do, the out­come will be the same: Judge Gor­such will be sit­ting on the court in a mat­ter of days. All that re­mains is whether Democrats force — and Repub­li­cans fol­low through on — a ma­jor change to fil­i­buster rules.

“I can tell you that Neil Gor­such will be con­firmed this week,” Se­nate Ma­jor­ity Leader Mitch McConnell said, coun­ter­ing Mr. Schumer on NBC. “How that hap­pens re­ally de­pends on our Demo­cratic friends. How many of them are will­ing to op­pose clo­ture, on a par­ti­san ba­sis, to kill a Supreme Court nom­i­nee? Never hap­pened be­fore in his­tory, in the whole his­tory of the coun­try.”

Mr. Tester be­comes the sec­ond se­na­tor heav­ily tar­geted Demo­cratic se­na­tor to op­pose Judge Gor­such, cit­ing con­cerns over abor­tion and cam­paign fi­nance — both ar­eas where the judge would only say he re­spects prece­dent, but wouldn’t com­mit to up­hold­ing the one and over­turn­ing the other, as Democrats want.

“It’s clear to me that, if con­firmed, Judge Gor­such would threaten our ac­cess to a doc­tor and en­dan­ger the con­sti­tu­tional rights of law-abid­ing cit­i­zens,” Mr. Tester said.

He and Sen. Claire McCaskill, a Mis­souri Demo­crat who an­nounced her “No” vote Fri­day, are both up for re-elec­tion in states Mr. Trump eas­ily won last year.

Repub­li­cans had been count­ing on elec­toral pres­sure to earn their back­ing for the nom­i­nee. In­deed, Sens. Joe Manchin of West Vir­ginia, Heidi Heitkamp of North Dakota and Joe Don­nelly of In­di­ana, all up for elec­tion in Trump states, an­nounced in the last few days that they will sup­port Judge Gor­such.

“I be­lieve that he is a qual­i­fied ju­rist who will base his de­ci­sions on his un­der­stand­ing of the law and is well­re­spected among his peers,” said Mr. Don­nelly, who an­nounced his de­ci­sion Sun­day af­ter­noon.

But, with­out Ms. McCaskill and Mr. Tester, Repub­li­cans will al­most have to run the table of the re­main­ing undecided sen­a­tors.

One re­main­ing tar­get is in­de­pen­dent Sen. Angus King of Maine. An­other is Sen. Michael Ben­net, a Demo­crat from Colorado, which is where Judge Gor­such lives. Mr. Ben­net is fac­ing in­tense pres­sure to back the home-state hero.

But even if both these men backed the judge, com­bined with Mr. Don­nelly, Mr. Manchin and Ms. Heitkamp, that still ac­counts for just 57 of the 60 votes needed to over­come a fil­i­buster.

That means the judge’s fate comes down to four other Democrats — all lib­eral stal­warts in heav­ily Demo­cratic states — who have yet to an­nounce their stance.

The lob­by­ing of Democrats has in­ten­si­fied. In Mon­tana, three key judges and a for­mer judge wrote a let­ter to sen­a­tors en­dors­ing Judge Gor­such for the Supreme Court, adding to the pres­sure on Mr. Tester to break with his party.

“Judge Gor­such will pro­vide valu­able in­sight and per­spec­tive from the Western states on a Supreme Court that is dom­i­nated by Jus­tices hail­ing from the Eastern se­aboard,” the let­ter reads. “Judge Gor­such ad­mit­ted to pre­fer­ring dry flies to wet flies dur­ing the lengthy con­fir­ma­tion hear­ings, and that’s an opin­ion all Mon­tanans can re­spect.”

The nu­clear op­tion in­volves an ar­cane pro­ce­dural tac­tic that lets the Se­nate change the rules by ma­jor­ity vote. Since the fil­i­buster is merely a Se­nate de­bat­ing tac­tic, its power can be cur­tailed through a rule change.

Repub­li­cans first con­sid­ered the tac­tic in 2005, when Democrats were fil­i­bus­ter­ing Pres­i­dent Ge­orge W. Bush’s ap­peals court nom­i­nees, but ul­ti­mately backed off after a gang of rene­gade Democrats and Repub­li­cans cut a deal.

Democrats ac­tu­ally trig­gered the nu­clear op­tion four years ago, kneecap­ping the power of the fil­i­buster for ev­ery other nom­i­nee ex­cept the Supreme Court.

Now, with the nu­clear op­tion look­ing in­creas­ingly likely, con­ser­va­tives are try­ing to stiffen GOP sen­a­tors’ spines against an­other last-minute deal like the rene­gades struck in 2005.

Some Democrats re­port­edly are at­tempt­ing to strike an agree­ment in which they would agree not to fil­i­buster Judge Gor­such in ex­change for a prom­ise that they would be al­lowed to fil­i­buster — and the GOP wouldn’t use the nu­clear op­tion — on a fu­ture Trump pick.

The con­ser­va­tive ac­tivists who have backed Judge Gor­such say such a deal makes no sense for Repub­li­cans. If Judge Gor­such, who has won ex­cep­tional re­views for his le­gal cre­den­tials, isn’t ac­cept­able, the ac­tivists say, there’s no­body Mr. Trump could pick who would sat­isfy Mr. Schumer or the lib­eral groups itch­ing for a fight.

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