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Senators Look to Supreme Court Nuclear Winter

With rule change seemingly inevitable, senators look to what’s next

Senate Majority Leader Mitch McConnell said Judge Neil Gorsuch will be confirmed to the Supreme Court, one way or another. (Bill Clark/CQ Roll Call)
Senate Majority Leader Mitch McConnell said Judge Neil Gorsuch will be confirmed to the Supreme Court, one way or another. (Bill Clark/CQ Roll Call)

The Senate Republicans’ deployment of the “nuclear option” to change the chamber’s rules and confirm President Donald Trump’s Supreme Court nominee is so inevitable that senators are already moving on to the next debate.

“We’re on this spiral downward, and obviously, the next thing to go likely the next time there’s a big issue that comes up legislatively will be the legislative filibuster,” Sen. Bob Corker said Tuesday.

The Tennessee Republican made it clear he thought that moving to a majoritarian status for passing legislation would be a bad idea, but he wants his fellow senators to acknowledge the point before it becomes a fait accompli.

“Look, we all know how this movie ends, OK? The big concern I have is that there be an acknowledgement that we both — if we don’t respect the institution, who is going to?” Corker asked rhetorically. “And shouldn’t we go ahead and have the discussion now about the legislative piece which, let’s face it, is the only thing left for us to basically take down as a body?”

Corker’s comments came as an ever-increasing number of Senate Democrats announced that they would oppose the nomination of federal appeals court Judge Neil Gorsuch to fill the Supreme Court seat vacated by the death of Antonin Scalia.

Maryland Sen. Benjamin L. Cardin was among several Democrats announcing their opposition to Gorsuch on Tuesday. Like several other Democrats, Cardin noted the GOP blockade of President Barack Obama’s choice of D.C. appeals court Judge Merrick Garland for the same seat in announcing his opposition to Gorsuch.

“By recklessly blocking a vote or even a hearing on Merrick Garland, the Republican leadership has inflicted lasting damage on the Supreme Court and the independence of the federal judiciary, while diminishing the powers and duties of the Senate,” Cardin said. “Unlike Judge Garland, who was considered by almost all independent judicial scholars as mainstream, Judge Gorsuch does not enjoy a similar evaluation.”

But while a spokesperson for Cardin said the senator was still considering the floor process, there has been no ambiguity from other Democrats such as Jeanne Shaheen of New Hampshire.

“Despite this unprecedented obstruction by the Republican majority, I remain committed to upholding the Constitution’s instruction to advise and consent on Supreme Court nominations. As Judge Gorsuch’s nomination comes to the floor, I will support a 60-vote threshold for approval, an appropriate high bar that has been met by seven of the eight current Supreme Court justices,” Shaheen said in her Tuesday statement announcing she was against Gorsuch.

Cardin and Shaheen were among what seemed to be a dam breaking of Democrats announcing their opposition on Tuesday. 

Senate Majority Whip John Cornyn suggested that even assuming Majority Leader Mitch McConnell goes ahead with the so-called nuclear option to change Senate precedent to allow a simple majority to move Gorsuch’s nomination next week, it likely would not lead to an expansion to legislation down the road.
“I think any senator can begin that conversation, and we’ll have that discussion on the floor. My own view is that this would not in any way implicate the legislative cloture rule,” the Texas Republican said. “I don’t know of any support for changing that except maybe in the House of Representatives.”

Of note, though, is that Republicans have typically shied from talking of doing away with the filibuster for Supreme Court nominations, so the current momentum to do so represents an escalation of tensions that many did not foresee or desire. 

Republicans had hoped for more defections on the Democratic side of the aisle to allow Gorsuch to clear the 60-vote threshold needed to at least clear a debate-limiting cloture vote and break a filibuster without changing precedent.

But Senate President Pro Tempore Orrin G. Hatch, who could preside over a potential change in Senate precedent on the handling of Supreme Court nominations on the floor, issued a one-sentence statement Tuesday afternoon about the announced Democratic plans to filibuster.

“Judge Gorsuch is going to be confirmed,” said the Utah Republican, a former Judiciary chairman.

While McConnell, like Hatch, avoided procedural specifics on Tuesday, he has been similarly definitive about Gorsuch getting confirmed, now with a precise timeline.

“As you know, next Monday, Gorsuch will come out of committee, will be on the floor of the Senate next week and confirmed on Friday,” the Kentucky Republican told reporters gathered after the weekly GOP conference lunch.

That timeline suggests McConnell will file a motion to limit debate on Tuesday, setting up the key vote and nuclear option standoff on Thursday morning, with confirmation 30 hours later on Friday afternoon.

“It’s almost amusing to try and watch our Democratic friends come up with some rationale for opposition. Several have suggested a Supreme Court justice needs to get 60 votes,” McConnell said. “In fact, as you already know, no Supreme Court justice has ever been stopped with a partisan filibuster.”

Senate Minority Leader Charles E. Schumer has pushed back on McConnell’s movement toward changing the rules, and brought up the shadow of Garland again.

Mitch McConnell’s a free actor in this,” the New York Democrat said Tuesday. “Just as we didn’t change the rules for the Supreme Court, he doesn’t have to change the rules for the Supreme Court. If [he] does, … it’s on his shoulders and only on his shoulders. And let’s not forget, he doesn’t come to the court, so to speak, with clean hands. This is the man who held — broke 230 years of precedent and held Judge Garland up for a year and a half and now is complaining. Doesn’t — doesn’t really wash.” Bridget Bowman contributed to this report.

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