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Nuclear Option Looms as Supreme Court Hearings Wrap Up

Senators ready to blame opposing party for any upending of Senate rules

Supreme Court Justice nominee Neil Gorsuch testifies on the second day of his Senate Judiciary Committee confirmation hearing. (Tom Williams/CQ Roll Call)
Supreme Court Justice nominee Neil Gorsuch testifies on the second day of his Senate Judiciary Committee confirmation hearing. (Tom Williams/CQ Roll Call)

With Judge Neil Gorsuch’s Supreme Court confirmation hearings wrapping up, senators will soon confront whether his nomination will upend Senate rules.

Senate Majority Leader Mitch McConnell has not yet said  whether he would move to change Senate rules that currently require 60 votes to end debate on Gorsuch’s nomination. If eight members of the Democratic caucus do not join the 52 Republicans to move the nomination forward, McConnell could move to change the rules, lowering the threshold to a simple majority.

At his regularly scheduled Tuesday press conference with his leadership team, McConnell did not directly address whether he would do so. But he did question whether a Democratic blockade of Gorsuch would signal a broader issue for future high court nominees.

“I haven’t seen a single Democrat, unless there’s one you’ve observed, indicate they were prepared to either vote for cloture or to vote for him,” the Kentucky Republican said.

“Leading you to ask the following question: If Judge Gorsuch can’t achieve 60 votes in the Senate, could any judge appointed by a Republican president be approved with 60 or more votes in the Senate?” McConnell said.

That suggestion — that a blockade of Gorsuch could mean an indefinite vacancy — could set up the GOP argument for changing the procedural rules to end debate. McConnell could invoke the so-called nuclear option, a procedural gambit to change the Senate rules by a majority vote rather than two-thirds of senators.

“It does sound like he’s laying the groundwork for the nuclear option,“ Senate Minority Whip Richard J. Durbin said of McConnell. “Let’s wait and see how this evolves.”

Some Republicans have acknowledged that changing the Senate rules would not be their first choice. Keeping the 60-vote threshold typically ensures nominees have bipartisan support. But Republicans are preparing to blame Democrats for forcing their hands.

“I think we ought to take it one step at a time, and before we threaten anything, we ought to see how [Democrats] act,” said Arizona Sen. John McCain.

Utah Sen. Orrin G. Hatch, a senior Judiciary member, said he was not in favor of the nuclear option “except as a last resort.”

“And I would hope that the Democrats won’t require that,” he added.

That last straw could come after a failed cloture vote on Gorsuch’s nomination, according to Senate Majority Whip John Cornyn.

“We’re hoping that the Democrats will agree to an up-or-down vote. What happens is really in their hands,” the Texas Republican said in a brief interview. “We’ll have a cloture vote and see how the Democrats vote.”

When Senate Democrats changed the procedural rules for most judicial nominees and executive nominations in November 2013, Republicans seethed and accused Democrats of breaking the rules and changing the chamber for the worse.

“Let me say, we are not interested in having a gun put to our head any longer. If you think this is in the best interests of the Senate and the American people to make advice and consent, in effect, mean nothing — obviously, you can break the rules to change the rules to achieve that,” McConnell said on the floor at the time.

Cloture votes rarely occur on Supreme Court nominations, but Democrats are signaling one will happen for Gorsuch.

“I believe we need 60 votes,” Senate Minority Leader Charles E. Schumer said at a Tuesday press conference. “Any one member can ask for 60 votes. It’s going to happen.”

If Republicans fail to get 60 votes to shut off debate, invoking cloture, that would set up a scenario similar to when Democrats eliminated the filibuster for most nominees in 2013. Then-Senate Majority Leader Harry Reid moved to reconsider a failed cloture vote on a D.C. Circuit judicial nominee, which set off the procedural steps that led to the effective rule change.

As the most senior GOP senator, Hatch would likely be in the presiding officer’s chair if Republicans invoked the nuclear option.

Asked Wednesday if he was prepared to do what would be necessary to ensure Gorsuch is confirmed, Hatch said, “Yeah, I’m prepared.”

Cornyn said holding a cloture vote on Gorsuch’s nomination may pressure some vulnerable Senate Democrats to vote in favor of ending debate.

“I actually think it would be good to put [Democrats] on record because I think there’s a number of them that are vulnerable in red states in 2018,” he said. “My hope is that they will see it in their self-interest to go ahead and allow for cloture.”

Those Democrats in Republican-leaning states are facing pressure from outside groups to support Gorsuch. The Judicial Crisis Network, a conservative group that has been spearheading an ad campaign supporting his nomination, has spent more than $3.4 million in Indiana, Missouri, Montana, North Dakota and West Virginia. Each of those states have a Democratic senator up for re-election in 2015.

The network’s chief counsel Carrie Severino said Democrats would “lay the groundwork for gridlock” if they block Gorsuch’s nomination.

Asked if the outside groups would ramp up pressure on those Democratic senators after the hearings end, Severino said, “We’ll have to decide our strategy based on what Democrats decide to do after the hearing.”

Democrats are also facing pressure from the more liberal wing of their party to filibuster Gorsuch’s nomination. Liberal groups recently launched a campaign dubbed “The People’s Defense,” warning that Democrats will be held accountable for their votes.  

Some Democrats expressed concern that Republicans could invoke the nuclear option, damaging Senate operations. But they also say Republicans would be responsible for the consequences.

“It would be a huge mistake for Republicans to force this nomination through because they can’t get consensus,” Connecticut Sen. Christopher S. Murphy said. “I don’t think we can calculate our strategy based on the potential that they might use the nuclear option. They’re going to do that or not do that based on their own politics.”

Niels Lesniewski contributed to this report.

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