Se­nate trig­gers ‘nu­clear option’ for Gor­such

Fall­out to be felt for years from breach of tra­di­tion

The Washington Times Daily - - FRONT PAGE - BY ALEX SWOYER

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.

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