As President Donald Trump’s nominee for the Supreme Court, Judge Neil Gorsuch, was set to clear a Senate Judiciary Committee vote Monday advancing his confirmation, Democrats secured the votes to to filibuster the judge on the Senate floor later this week, at which point it is believed that Republicans will trigger the so-called “nuclear option” to eliminate the filibuster on Supreme Court nominees.
“I cannot vote solely to protect an institution when the rights of hard-working Americans are at risk. Because I fear that the Senate I would be defending no longer exists,” Sen. Patrick Leahy (D-VT) said at Monday’s Judiciary Committee meeting, in remarks that bashed Republicans for their unprecedented blockade of Obama nominee Merrick Garland last year.
“I’ve often said that the Senate — at its best — can be and should be the conscience of the nation. But I must first and foremost vote my conscience, vote today and later this week. My conscience will not allow me to ratify the majority leader’s actions,” Leahy said.
Leahy had been critical of Gorsuch, but before Monday’s meeting, was considered wobbly on the question of whether to block the judge from receiving an up-or-down floor vote. At Monday’s meeting, the committee’s ranking member Sen. Dianne Feinstein (D-CA) and Sen. Chris Coons (D-DE) also announced their plans to filibuster Gorsuch. Sen. Mark Warner (D-VA), who is not on the committee, sent a statement out during the meeting announcing his plans to vote against what is known as cloture, and thus filibuster the judge. Those announcements pushed Democrats to the 41-vote threshold to filibuster Gorsuch.
Sen. Mitch McConnell (R-KY) has made clear that he would respond to a Democratic filibuster by going nuclear, changing the Senate rules to prohibit filibusters of Supreme Court nominees, a change which requires just a simple majority vote. Even the Republicans known to be institutionalists have indicated they would vote in favor of the nuclear option if need be.
“This will be the last person that will be subject to a filibuster, which was in effect in 1948, because the Senate traditions are going to change over this man based on the times in which we live,” Sen. Lindsey Graham (R-SC) said at Monday’s Judiciary committee meeting. “And I find ironic and sad that we’re going to change the rules over somebody who has lived such a good life, who has been such a good judge for such a long time.”
The impending destruction of the filibuster for Supreme Court nominees was a long time coming. Republicans blame Democrats for sinking Reagan nominee Robert Bork in 1987 over concerns about his hard-right ideology, though some Republicans voted against Bork in the up-or-down floor vote as well. Partisanship around the confirmation of lower court nominees only increased in administrations that followed, reaching their apex in 2013, when then-Majority Leader Harry Reid went nuclear on non-Supreme Court confirmation filibusters in response to the GOP’s McConnell-led obstruction campaign.
Republicans took the judicial wars to the next level by refusing to grant Garland, a highly regarded moderate judge, even a confirmation hearing last year after President Obama nominated him to replace Justice Antonin Scalia, who died in February 2016. Hours after Scalia’s death, McConnell proclaimed that since it was a presidential election year, Obama’s successor should choose Scalia’s replacement.
Some Republicans have warned that nixing the Supreme Court filibuster will create a “slippery slope” to eliminating the legislative filibuster, as Judiciary Chairman Chuck Grassley (R-IA) suggested last week.
“I don’t think the legislative filibuster is in danger,” McConnell countered Sunday on Meet the Press. “It’s a longstanding tradition of the Senate.”
Corrected: This story has been corrected to reflect that Sen. Chuck Grassley is a Republican and that the late Justice Antonin Scalia died in 2016, not 2015