Few lawmakers are happy, at least publicly, with the impending destruction of the Supreme Court filibuster in Senate. But no one can really agree on what it would have taken to avoid it.
Now that the GOP’s invocation of the so-called “nuclear option” on Supreme Court nominees seems inevitable, the days leading into the final confirmation vote for Judge Neil Gorsuch have a turned into a blame game over where things went wrong for the Senate and what it means for the Supreme Court down the road.
“We’re on a path towards having a majority likely to chose to change the rules rather than … change the nominee or negotiate with us. And that would be really unfortunate. I think it has some lasting negative consequence for the Senate,” said Sen. Chris Coons (D-DE), who announced Monday he’d filibuster Gorsuch, giving Democrats the final vote they needed to block an up-or-down floor vote on the nomination.
“Here’s the effects of doing away with the filibuster on judges,” Sen. Lindsey Graham (R-SC) told reporters last week. “You’re going to get more ideological choices, because you don’t have to reach across the aisle and the Senate is going to become even more contested.”
The current posturing is made up of equal parts partisan outrage and resignation that this moment was a long time coming. Republicans decried the erosion of a Senate norm, while steadfastly promising to go “nuclear” on the Supreme Court filibuster if Democrats did indeed mount one. Democrats re-litigated the Republican obstruction of Obama nominee Merrick Garland, even as they swore that their current opposition to Gorsuch was on the merits of his nomination.
“It’s both sides that have taken us to this place,” Sen. Bob Corker (R-TN) told reporters last week. “We will end up with Reid breaking the rules to change the rules, McConnell breaking the rules to change the rules.”
Corker noted that ending the filibuster on legislation would likely be next. “It will just take one tough legislative issue coming up and somebody else will do it,” Corker said. “I think we all know that’s where we’re heading.”
Democrats have been heading in the direction of a filibuster of Gorsuch since Minority Leader Chuck Schumer (D-NY) indicated last month he was in favor of one. But the seeds were planted long before that, in years of escalating political battles around judicial confirmations that culminated with the GOP’s blockade last year of Garland.
A lack of trust, particularly for what comes after the Gorsuch nomination, prevented lawmakers from coming to an agreement that would have avoided the invocation of the nuclear option. The fear on both sides is that there was nothing to stop the cycle from repeating itself — Dems vowing a filibuster, Republicans responding by going nuclear — for Trump’s next Supreme Court nomination.
Even Sen. Jeff Flake (R-AZ), a moderate Republicans whose discomfort with nixing the filibuster has been apparent, said Monday that he didn’t see an escape route from the current deadlock.
“I’d rather change the behavior of senators rather than change the Senate rules,” Flake told TPM. “I don’t know what kind of deal could be struck. You can maybe convince a few to change their minds. But what would they promise? Not to filibuster the next one?”
One idea that had been floated, according to a Politico report last month, was an agreement in which Democrats would provide the eight votes needed to avoid a filibuster of Gorsuch, while at least three Republicans vowed not to vote in favor of a nuclear option for a vacancy later in Trump’s term.
By Monday, members on both sides of the aisle said discussions of ways to avoid the nuclear option had failed.
“Plenty of conversations happened, but it didn’t come to fruition and [Democrats] had enough [votes] to declare [a filibuster] and now it’s over,” said Sen. John McCain (R-AZ), who participated in the so-called Gang of 14 that thwarted the use of “nuclear option” in the mid-2000s.
“Over all there’s no cooperation,” McCain said when asked by such a deal wasn’t achievable this time around. “It’s a whole lot of factors including angry people, reapportionment, gerrymandering, none of it good.”
Coons blamed Republicans’ blockade of Garland specifically for putting lawmakers “in a place where it’s very hard to trust each other and come to an agreement.”
“As I have talked to my colleagues in the last week, [there was] a pretty broadly-shared sense that this is a stolen seat and that simply threatening us with changing the rules rather than engaging with us has not been a good approach to this confirmation,” Coons said.
Likewise, Sen. Sheldon Whitehouse (D-RI), coming out of Monday’s committee vote, told TPM that the prospects of a deal to avoid the nuclear option weren’t “very realistic” because “Mitch [McConnell] has been planning for this eventuality ever since he stopped Garland.”
“If he gets enough blowback from Republicans who say, ‘For Pete’s sake Mitch, try to work something out so we don’t have to do that’, then something might happen,” Whitehouse said.
That seemed far from likely. In a press conference with Judiciary Committee Republicans after Monday’s vote, Graham said flatly “no” when asked for the possibility of a deal.
“We’re just asking them to do what we did for [Supreme Court justices Sonia] Sotomayor and [Elena] Kagan. They came to the floor without a 60-vote requirement,” Graham said, referring to the so-called “cloture vote,” which requires 60 votes to end debate, that Democrats will use to filibuster Gorsuch.
Nevertheless, many Republicans would have preferred it had not come to this, and some tried to avoid saying directly whether they would vote for the nuclear option, a feeling that was evident when most of the GOP members on the Judiciary Committee declined to declare their intention to vote for the nuclear option when asked for a show of hands by a reporter Monday.
“We’re not going to show hands,” Sen. John Cornyn (R-TX), the majority whip and a Judiciary Committee member, said.