WASHINGTON — As the Senate prepares to confirm Judge Neil Gorsuch to the Supreme Court under a historic rule change, members on both sides of the aisle say the upper chamber has reached a new partisan low — and they’re not happy about it.
"I regret it for the country because I think you're going to have more ideological judicial picks," Republican Sen. Lindsey Graham told BuzzFeed News. "And I think the Senate's going to become more polarized."
Arizona Sen. John McCain had been in talks with Democrats to try to avoid the hated so-called nuclear option.
“It’s over, it’s over,” he said, disappointed, on Monday night.
Less than three days later, Democrats, led by Minority Leader Chuck Schumer, filibustered Gorsuch’s nomination and Republicans got around them by invoking the nuclear option, so named because it involves fallout for everyone involved. Essentially, on Thursday afternoon the GOP changed the process for approving Supreme Court nominees from a bipartisan one — in which any candidate needed 60 votes to get through — to a new system where a simple majority rules.
Now, Gorsuch will be approved by week's end. But beyond that immediate consequence, many senators are coming to grips with the effect that rule change will have in the future, not only on the Supreme Court, but the Senate and — as a result — the country.
“Just understand what’s getting ready to happen,” Tennessee Sen. Bob Corker said last week, blaming both parties for the decline in cooperation. “We move through this process, Democrats filibuster, Republicans invoke the nuclear option. That means that every president who comes down the pike in the future knows that if their side’s in the majority, they have no reason to appoint a Boy Scout like Gorsuch.”
Since then, more senators have joined the chorus of despair. “If we have to, we will change the rules,” Graham said earlier in the week, before the rule change became a reality. “And it looks like we’re going to have to. I hate that. I really, really do.”
While there is plenty of finger-pointing about who is actually at fault, many senators from both parties feel deeply hurt by the breakdown in the parties' ability to work together that led them here. And while partisanship is nothing new for the Senate, several say this is a new low that could have dire consequences for their ability to govern moving forward.
“The whole environment has dramatically changed. People don’t work together the way they used to,” said McCain, who had been a member of the Gang of 14 that successfully avoided a similar nuclear showdown in 2005. Despite talks with Democrats, the veteran Republican was dismayed he couldn’t reach an agreement this time around, adding that he had “seen no indication” that Senate Majority Leader Mitch McConnell was willing to try to cut a deal, either.
Democrats, too, are disappointed with the situation in which they find themselves. Sen. Claire McCaskill, a red-state Democrat who faces re-election in 2018, announced on Friday that she would vote no on Gorsuch’s nomination, as well as on ending debate. But she wrote in a Medium post explaining her vote that she was left deeply uncomfortable with the consequences beyond Gorsuch himself: “I remain very worried about our polarized politics and what the future will bring, since I’m certain we will have a Senate rule change that will usher in more extreme judges in the future.”
What's worse, some members say, is that this could be just the beginning.
“It’s a slippery slope,” McCain said, worrying that the next filibuster to be eliminated will be the legislative one. That would mean that whichever party has the majority will be able to pass bills — not just approve nominees — without working with the other party. And that means a lot more power for whichever party gets 51 seats in the Senate. Under the current political alignment, Democrats would have virtually no power in Congress.
Graham told BuzzFeed News he shares McCain's fears, saying that axing legislative filibuster on bills could “be a real temptation” for a party with control of Congress and the White House.
“This has been a crippling wound to the Senate,” Graham said. “A fatal blow, a fatal wound, would be the legislative filibuster.”
Graham said he would never support eliminating the legislative filibuster, though — and McConnell has said he has no desire to do that, either. “I’d rather lose than be part of killing the Senate,” Graham said.
McConnell and Schumer have both said that they want to avoid going down that road. But not long before the vote, Schumer said that he hoped he could take McConnell at his word and warned that going nuclear at all had once been unthinkable, calling Thursday's move a "cautionary tale."
Punctuating senators’ laments about the rule change has been much of the same finger-pointing that has served as justification for past implosions of the chamber’s long-held traditions. McConnell’s decision Thursday to torpedo the rule allowing the minority party to play a role in Supreme Court nominations follows another similar move less than four years ago, when Democrats invoked the nuclear option for cabinet and lower-court nominations under then–majority leader Harry Reid.
Republicans are still angry about Reid’s decision to go nuclear in the first place, arguing that he and fellow Democrats set the stage for this new move years ago and now must face the consequences. Democrats, meanwhile, were and remain angry about McConnell's decision to block former president Barack Obama's nomination of Judge Merrick Garland for the Supreme Court last year. Some left-leaning members went so far as to vow to filibuster any nominee who wasn’t Garland and did so Thursday.
At Monday’s meeting of the Judiciary Committee, the respective party whips traded blows over who was at fault, offering their own versions of how senators got here in the first place.
“We’re here because of a Republican strategy … to line this vacancy up for the next Republican president,” said Democratic Whip Dick Durbin.
Durbin said he remembered the Senate as a proud institution, “but then came this onslaught of filibusters, unprecedented in the history of this body,” arguing that Republicans under McConnell did “everything they could to stop the orderly consideration of bills and nominations.”
He said it was Republican obstructionism that led to vacancies in the DC Circuit Court of Appeals and the need to go nuclear in 2013. “And that’s what brings us to this point,” he said.
Republican Whip John Cornyn had a different take. “How did we get started with filibusters of judges? Well, we know there was never a partisan filibuster of a judge to the Supreme Court before this one,” he said.
Cornyn argued that the rule change in 2013 “was a bald power grab" and that Republicans "didn’t like that very much, to say the least.”
But by following in Democrats’ footsteps and going nuclear on Supreme Court judges, he argued, Republicans are “merely return[ing the Senate] to the status quo.”
This week, Tennessee Sen. Lamar Alexander also pinned the blame on the Democrats, saying their decision to filibuster Gorsuch (or, refuse to vote with Republicans to end debate on his nomination) would be “be very damaging to them, to the Senate, and to the country.”
McCain issued a warning to his colleagues on both sides of the aisle. “Just as the Democrats regretted deeply what Harry Reid did, we will regret sometime what we’re doing,” he said.