Senate triggers ‘nuclear option’ for Gorsuch
Fallout to be felt for years from breach of tradition
Republicans used the “nuclear option” to pave the way Thursday for Judge Neil Gorsuch to be confirmed to the Supreme Court, adjusting the Senate rules to break a Democratic filibuster and deliver President Trump a major early victory.
A final confirmation vote is expected Friday, but Judge Gorsuch’s fate is no longer in doubt — he will become the ninth justice, filling the seat left vacant more than a year ago by the death of Justice Antonin Scalia.
Democrats fought feverishly to try to thwart Mr. Trump and Judge Gorsuch, mounting the Senate’s first partisan filibuster of a Supreme Court nominee. They mustered 44 senators’ support, which usually would be more than enough to sustain a blockade.
Republicans, though, said the filibuster was a striking breach of tradition and flexed their 52-seat majority to rewrite
the rules, using a tactic Democrats pioneered in 2013 to apply to lower federal court judges and executive branch appointments.
With that shortcut, Republicans altered the standard to say that filibusters of Supreme Court nominees can now be broken through a simple majority rather than 60 votes.
“This will be the first — and last — partisan filibuster of a Supreme Court nomination,” said Senate Majority Leader Mitch McConnell, Kentucky Republican.
The fallout from the latest use of the “nuclear option” threatens to taint the Senate for weeks and years to come.
In the short term, Mr. Trump will have an easy path for Supreme Court nominees, giving him a chance to reshape the court.
But senators said the fights of the past few years have fundamentally altered the Senate, and they wondered whether the legislative filibuster, used to block bills, can survive.
Minority Leader Charles E. Schumer, New York Democrat, blamed Republicans for overreacting Thursday, saying Democrats’ filibuster was a fair retaliation for the way Republicans treated Judge Merrick Garland, President Obama’s pick for the Scalia seat last year.
The Republicans never granted Judge Garland a hearing, much less a vote, though as the majority party, they could have voted him down on the merits anyway. Democrats accused Republicans of stealing the seat.
Democrats also said Mr. Trump was too tainted by scandal to be allowed to make a Supreme Court pick and that they feared Judge Gorsuch himself wouldn’t rule the way they wanted on key abortion and free speech cases.
“The more we learned about Judge Gorsuch’s record, the more we didn’t like,” Mr. Schumer said.
During his 20 hours of questioning last month, Judge Gorsuch deflected attempts to pin down how he would rule, saying he would be doing a disservice to future plaintiffs and defendants if he were to weigh in on controversial issues that might come before the high court.
His 10-year career as a judge on the 10th U.S. Circuit Court of Appeals, though, earned him rave reviews from liberal and conservative legal scholars.
That helped solidify support among Republican senators, all 52 of whom are enthusiastically backing the judge. Four Democrats — three who are up for reelection next year in states Mr. Trump won overwhelmingly in last year’s election, and a fourth who is from Colorado, Judge Gorsuch’s home state — are also backing the nomination.
Mr. Schumer said the fact that Judge Gorsuch couldn’t muster at least 60 votes showed he was substandard.
As it became clear that his filibuster would trigger the nuclear option, Mr. Schumer tried to pull back. In the middle of the action Thursday, he proposed delaying a vote for two weeks to give both sides a chance to negotiate an alternate nominee.
Republicans rejected that idea, saying Mr. Schumer hasn’t given them the sense that there is anyone Mr. Trump could pick who would satisfy the left.
“When history weighs what happened, the responsibility for changing the rules will fall on the Republicans and Leader McConnell’s shoulders,” Mr. Schumer said. “No one forced them to act; they acted with free will. We offered them alternatives; they refused.”
Once Judge Gorsuch is sworn in, the court will again have nine justices: five appointed by Republican presidents and four appointed by Democrats.
Scalia was one of the court’s more conservative-leaning justices, so Judge Gorsuch wouldn’t change the court much if he rules the way Democrats fear.
A bigger change could come with the next vacancy, which court watchers say is likely among one of the liberal justices or moderate Justice Anthony M. Kennedy. That would give Mr. Trump a chance to shape the court by picking a conservative and not have to worry about a filibuster.
Mr. Trump, speaking to reporters Thursday, said he won’t let the filibuster fight affect any future picks.
“If there is a second one in my administration — there could be as many as four — I don’t think the nuclear option has anything to do with [it],” the president said.
Republican senators, though, said Democrats have lost leverage.
“For the life of me, I don’t understand why the Democrats made such a fuss about this one,” said Sen. Orrin G. Hatch, Utah Republican. “I expect Armageddon on the next one.”
Sen. Joe Manchin III, a West Virginia Democrat who supported Judge Gorsuch, bucked his party on the nuclear option in 2013 and defied Republicans on the vote this year, said he was disappointed in all sides.
“Their shifting positions and hypocrisy is the one thing that unites them,” he said. “Both times, it was simply about doing what was politically easy instead of doing the hard work of consensus building. This is precisely what is wrong with Washington.”
Now all eyes turn to the legislative filibuster, which has stood as a Senate tradition for centuries but is now under scrutiny.
The Constitution requires only a majority vote for bills and for confirmation of nominees, and the 60-vote threshold that has become synonymous with the Senate is a chamber debating practice.
Sen. Susan M. Collins, Maine Republican, is trying to make sure the legislative filibuster remains. During Thursday’s votes, she circulated through the chamber to get signatures on a letter committing senators to protect the filibuster.
She approached roughly two dozen senators, and almost all of them appeared to sign. Among those she approached were the chamber’s most liberal lawmakers such as Sen. Patrick J. Leahy, Vermont Democrat, and conservatives such as Republican Sens. John Boozman of Arkansas and Jerry Moran of Kansas.
“I am going to lead a letter to our two leaders that puts as many of us as possible on record as saying that we would not support the elimination of the legislative filibuster,” Ms. Collins, who is working on the effort with Sen. Christopher A. Coons, Delaware Democrat, told reporters on Wednesday.
But Sen. John McCain, an Arizona Republican who signed the letter, said he doubted it will mean much. He said the Senate is on a “slippery slope.”
“It’s a nice gesture, but it’s meaningless,” he told reporters.
Mr. McConnell said this week that Republicans have no intention to change the legislative filibuster, and Sen. Richard Blumenthal, Connecticut Democrat, said he sees no reason for it to happen.
“But, the Senate is full of surprises,” Mr. Blumenthal said.