Prelude to the Nuclear Option

The Gorsuch Nomination Advances to the Full Senate

The Senate Judiciary Committee debates the nomination of Judge Gorsuch (A.P. Photo/J. Scott Applewhite).
The Senate Judiciary Committee debates the nomination of Judge Gorsuch (A.P. Photo/J. Scott Applewhite). (photo: Register Files)

On Monday, the nomination of Judge Neil Gorsuch to be the newest Associate Justice of the United States Supreme Court reached a key next step – the vote by the members of the Senate Judiciary Committee to advance the nominee for a full vote of the U.S. Senate. The Committee voted in favor of the nominee along strict party lines, 11-to-9.

The meeting of the committee and its party-line vote echoed much of that bitterness of the initial Judiciary Committee hearing for the Gorsuch nomination two weeks ago, and on Monday, the committee members stuck closely to their partisan scripts. The Republicans talked about Gorsuch’s eminent qualifications, his sound and fair judicial temperament and his ability to build consensus as a judge on a court with other jurists.  The Democrats launched repeated attacks on the nominee, declaring him an enemy of the “little guy” and a stooge for big business, an existential threat to abortion and a slippery, evasive judge outside what they see is the “judicial mainstream.” As with the four days of initial hearings, the gathering of the committee to vote on the nominee proved to be a rancorous and charged affair that revealed the wide political fissure that exists between the parties, even in the traditionally collegial body of the Senate.

Overhanging the proceedings was the grim prospect of a filibuster by the Democrat minority, led by New York Senator Chuck Schumer. As of the start of the committee vote on Monday, only three Democrats had announced their intention to vote for Gorsuch: Sen. Joe Donnelly from Indiana, Heidi Heitkamp from North Dakota and Joe Manchin from West Virginia. On Sunday, Donnelly issued a statement, declaring:  “After meeting with Judge Gorsuch, conducting a thorough review of his record, and closely following his hearing before the Senate Judiciary Committee, I believe that he is a qualified jurist who will base his decisions on his understanding of the law and is well-respected among his peers.”

Precious few other Democrats have expressed a willingness to consider a vote for Gorsuch, despite the fact nearly twenty of them are up for re-election in 2018 from red states that Donald Trump carried handily in last year’s presidential election. But with the threat of the filibuster looming, the question has become even less whether any Democrats will support Gorsuch than whether they will even allow a vote to be held. Under current Senate rules, 60 votes are needed to break a filibuster and end debate, a vote termed cloture that would then permit the Senate to proceed to an up or down vote on the nominee.

One by one over the last days, Democrats in the Senate had announced their intention to support a filibuster, and Senate watchers had kept close track of when Schumer and the Democrat leadership reached the 41 vote threshold to prevent cloture. That arrived when Sen. Chris Coons of Delaware, a member of the Judiciary Committee, declared his willingness to support a filibuster.

One surprising undecided vote on cloture – at least publicly – had been Sen. Pat Leahy of Vermont, one of the most liberal members of the Judiciary Committee. He is also the most senior Democrat on the committee and is thus well aware of the traditions and practices that are now in serious jeopardy should the filibuster be used by the minority and should the so-called nuclear option be executed by the Republican majority. In the end on Monday, he too announced that he would not vote for Gorsuch, and he would support the filibuster. There are several other Democrats who, as of the committee vote, had not yet announced their position on the filibuster.

Several Democrat and Republican members of the committee lamented the decline of decorum and the possible death of tradition in the Senate. Republican Senator Lindsey Graham of South Carolina stated the obvious when he warned, “This will be the last person that will be subject to a filibuster because the Senate traditions are going to change over this man based on the times in which we live.” Senator Coons said, “We simply cannot move this committee or this body forward if we endlessly obsess over past grievances and revenge.”

Appearing on MSNBC, Coons went on to say, “I think this is tragic…And on talking to friends on both sides of the aisle, we’ve got a lot of senators concerned about where we’re headed. There’s Republicans still very mad at us over the 2013 change to the filibuster rule, we’re mad at them for shutting down the government, they’re mad at us for Gorsuch, and we’re not headed in a good direction.”

Ironically, past grievances and revenge do go to the heart of much of this political fight. The Democrats – responding to their base – remain enraged over the unwillingness of the Republican majority to grant a vote, let alone a hearing, to Judge Merrick Garland last year when he was picked by then-President Obama to succeed the late Justice Antonin Scalia. “Gorsuch got what Garland didn’t, which was a fair hearing,” Coons added. “He got a full four days of hearings last week. I questioned him vigorously, some would say aggressively. And he is a charming man, he’s got a good résumé, he’s got strong qualifications in terms of his education, his service on the court, but he would be in some measures the most conservative justice on the Supreme Court.”

The extremely impressive credentials of Gorsuch, including a perfect rating from the American Bar Association, were not enough to overcome Democrat anger over Garland and also the sheer ugly political fight against President Trump, whose election last year is another source of fury among progressives. In effect, the Gorsuch hearing has been a proxy fight against Trump and his entire agenda, and the decision to mount a filibuster is also a calculated decision to begin preparations for an even more heated nomination war should another Supreme Court seat become vacant during the Trump era.

For a matter of historical record, there has never been a filibuster of a nominee to the Supreme Court.  One filibuster did take place, in 1968, when President Lyndon B. Johnson tried to name Associate Justice Abe Fortas to replace Earl Warren as Chief Justice. Fortas was hobbled by a nagging ethics problem involving payment for a seminar with American University, and Johnson faced a firestorm that ended with a bi-partisan filibuster. Fortas’ nomination was withdrawn, and he ultimately resigned from the Court entirely.

What happens next?

If, as now seems certain, the Democrats push ahead with a filibuster, the next few days will see the embrace by the Republicans of the nuclear option first wielded in 2013 by then Majority Leader Harry Reid, D-Nevada, to end the filibuster against judicial and other executive branch nominees.  That nuclear option did not extend to Supreme Court nominees, but the warning was made at the time that the vitriol and the bare-knuckle struggle of this political age must inevitably lead to the very crisis in which the Senate and the American Republic now finds itself.  Neither side will compromise – such as happened in 2005 with the Gang of 14, a bipartisan group of Senators that staved off the first threat of the nuclear option.

The Republicans have both the parliamentary means (thanks to Harry Reid) and the will to go nuclear.  Their determination was summed up clearly enough by Republican Sen. John Cornyn of Texas when he said to the committee before its vote, “I am proud to say that this good man, and this good judge, who has offered himself to serve our country on the United States Supreme Court, will be confirmed by the end of this week.”

Stay tuned. 

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