WASHINGTON — Senators are running headlong into a showdown over Judge Neil Gorsuch that could forever change the way Supreme Court nominees are approved and make it much tougher for an opposition party to prevent presidents from filling vacancies in the future.
With Democrats announcing they will try to filibuster Gorsuch's nomination, Republicans — who insist Gorsuch will be confirmed by the end of next week — are facing a game-changing possibility: Deploying the so-called "nuclear option."
Doing so would lower the 60-vote threshold the Senate needs to get to a final vote and allow them to confirm Gorsuch with Republicans alone. But the change would affect future Supreme Court nominees as well.
"Just understand what's getting ready to happen," Tennessee Sen. Bob Corker said Tuesday. "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."
"They can nominate somebody, an extreme person, because they know, after what's getting ready to take place over the next 10 days in all likelihood, they will no longer be bound by having to put someone forth that would at least meet some type of minimal criteria," Corker said.
Under normal circumstances, senators need 60 votes to end debate on a Supreme Court nomination, prevent a filibuster, and proceed to a final vote; it's known as "invoking cloture." Republicans only hold 52 seats in the chamber, meaning at least eight Democrats would need to vote with them to invoke cloture on Gorsuch's nomination. So far, just one Democrat, Sen. Joe Manchin, has said they'll oppose the filibuster and vote for cloture. But some moderate Democrats, such as Sens. Heidi Heitkamp and Jon Tester, have said they're still undecided.
Still, Senate Majority Leader Mitch McConnell said Tuesday that Gorsuch will be confirmed by next Friday, April 7, meaning a cloture vote would likely come mid-next week. Though he's been coy about using the nuclear option to get Gorsuch through, McConnell has repeatedly said the judge will be approved, whether the cloture motion passes or not.
McConnell would need the support of at least 50 of his senators to change the rules. Asked Tuesday if he had the support, McConnell smiled. "We're going to get Judge Gorsuch confirmed," he said. "There will be an opportunity for the Democrats to invoke cloture. We'll see where that ends."
Most Senate Republicans have echoed McConnell, declining to comment on a hypothetical. “Wait and see what we all will all do, but he will be confirmed,” Sen. John McCain said Monday evening.
Sen. Richard Shelby, however, has already said he's eager to go nuclear. "I think we're always going to change the rules," the Alabama senator told BuzzFeed News last week. "I'm ready to change one big one right now, 51 votes to confirm the Supreme Court."
If Republicans do make the change, Democrats are already preparing to blame McConnell for any fallout, despite the fact that one of their own, former Majority Leader Harry Reid, was the first Senate leader to go nuclear in 2013.
Senate Minority Leader Chuck Schumer says McConnell "is a free actor in this," arguing that when Reid invoked the nuclear option in 2013 on cabinet nominations, he left the 60-vote threshold in place for the Supreme Court. If McConnell changes that now, "it's on his shoulders, and only on his shoulders," Schumer said Tuesday.
But for Corker, Republicans and Democrats share the blame for the Senate's move away from institutionalized bipartisanship over the last few years.
He said he understands that Democrats are planning to filibuster a "perfectly capable" judge because of "hard feelings over what happened" with President Obama's pick for the Supreme Court vacancy, Merrick Garland, and demand from the left-leaning elements of the party to oppose the Trump administration.
But he said from the Republican point of view, if Democrats filibuster a qualified nominee, "then obviously the Republicans are going to break the rules to change the rules, just like was done before."
"So we're on this spiral downward," Corker said. He said he's worried that next on the chopping block will be the 60-vote threshold for all legislation — which would mean a simple majority of senators could do anything and would greatly weaken the minority party's power. Corker said that senators should have an "honest discussion" on the floor about it.
"So, look, we all know how this movie ends," Corker said. "The big concern I have is that there be an acknowledgement that we both — if we don't respect the institution, who's going to?"