Senators offered little hope Wednesday that the chamber will be able to avert a nuclear standoff over President Donald Trump’s Supreme Court nominee.
Democrats plan to filibuster the confirmation vote for Judge Neil Gorsuch, Trump’s pick to replace the late Justice Antonin Scalia, but Republicans could change Senate rules and eliminate the minority’s ability to block Supreme Court nominees.
The “nuclear option” can be implemented by a simple majority, and Republican senators say they have the votes to do it. Democrats previously pulled that trigger to change the rules for lower court nominees and presidential appointments in 2013 but left the filibuster intact for the high court.
Supreme Court confirmation fights have grown increasingly partisan in recent decades, but if Democrats proceed, it would be the first ever successful partisan filibuster of a new justice.
“It is disappointing that the Democrats have stated they will filibuster such a great nominee,” said Sen. Joni Ernst, R-Iowa, noting that Gorsuch received a “well-qualified” rating from the American Bar Association.
Sen. Jeff Merkley, D-Ore., held the Senate floor for 15 hours overnight from Tuesday to Wednesday to demonstrate his opposition to Gorsuch.
In an interview with KATU afterward, he urged Republicans not to eliminate the filibuster, warning it would “do lasting damage to both the Senate and the Supreme Court.”
“It will be a temptation for every president in the future to nominate from the ideological extremes,” he said.
Merkley acknowledged Democrats chose to go nuclear for lower courts in 2013, but he said that act followed a year of negotiations and efforts to overcome Republican obstruction of Obama nominees.
“There’s been nothing similar to that in this case,” he said.
Democrats argue Gorsuch is outside the mainstream and will protect corporate interests over average Americans. Republicans accuse them of cherry-picking a few of his most controversial cases to paint a misleading picture of a man who was confirmed unanimously to the appellate court a decade ago.
Sen. Sherrod Brown, D-Ohio, rejected the premise that either Democrats must drop their filibuster or Republicans must change the rules.
“Instead of changing the rules, [Trump] should change the nominee,” he said.
Sen. Thom Tillis, R-N.C., who presided over the Senate for part of Merkley’s all-nighter, accused the Oregon senator and Democratic leaders of hypocrisy for proudly voting for the nuclear option in 2013 but complaining about it now.
“What we’re trying to do this week is restore the behavior of the Senate that existed that existed for about 214 years,” he said.
Dismissing the “gamesmanship” of Minority Leader Chuck Schumer, Tillis suggested Democrats are repeating the mistakes of the past.
“Senator Schumer and Elizabeth Warren are taking their conference to a point where they want to do nothing,” he said. “When Harry Reid did that in 2014, he laid the groundwork for me to become a U.S. senator.”
According to Sen. Jim Risch, R-Idaho, the current fight is just a consequence of Democrats’ 2013 decision.
“This was decided then. It was decided for me,” he said. “I don’t like where we are, but really we have no choice.”
Sen. Luther Strange, R-Ala., also lamented the situation the Senate is in, but he cast blame on Democrats for taking unprecedented action against Gorsuch.
“We have the votes and we will change the tradition back to what it’s been for over 200 years, which is the president’s choice for the Supreme Court gets an up-or-down vote,” Strange said.
However, Democrats invoked the recent memory of a president’s choice who did not get an up-or-down vote, Merrick Garland, to defend their actions. Republicans refused to consider Obama’s nominee for Scalia’s seat for the final 10 months of his presidency.
“Judge Garland I think was the height of a filibuster,” Cardin said. “They didn’t even allow the nominee to have a hearing or a vote on the Senate floor, which was outrageous.”
Strange disputed that justification, insisting that denying Garland a hearing was appropriate because it was an election year. Democrats contend there is no precedent for Republicans’ stonewalling of Garland and it taints the “stolen seat” for anyone else.
“Every 5-4 decision if Neil Gorsuch is confirmed, it would be a situation where people look at that and say that’s not a legitimate decision,” Merkley said.
His solution: give the seat back to Garland, possibly in some sort of arrangement where both men are appointed when a second vacancy opens up.
“There’s only one legitimate candidate for this seat and it’s Merrick Garland,” Merkley said.
He has not given up on the prospect that a few Republicans will work with Democrats to find an alternative the nuclear option, but the clock is ticking.
“Let’s hope for the sake of America, the sake of the Supreme Court, the sake of the Senate, that we find a way,” he said.
While there are some variables still in play and a number of procedural hurdles left to pass, Republicans have no doubt about how this will all end.
“By the time the sun sets on Friday, we’re going to have a new Supreme Court judge,” Risch said.