Senate Republicans on Thursday were able to advance the confirmation of Judge Neil Gorsuch, President Donald Trump’s nominee for the Supreme Court, after invoking the so-called “nuclear option” to eliminate the filibuster on Supreme Court nominees. Gorsuch will likely get his final confirmation vote, an up-or-down vote he is expected to pass, on Friday.
After Democrats mounted a filibuster to block Gorsuch, the Senate voted along party lines, 52-48, to overrule the current rules regarding Supreme Court nominations, allowing Republicans to take the cloture vote that ends debate on the confirmation Thursday afternoon. That procedural showdown was highly anticipated and closely followed the script of the parliamentarian mechanics expected.
Minority Leader Schumer (D-NY) had signaled last month that Democrats would attempt to block Gorsuch by denying him the 60 votes necessary to invoke cloture. By this week it was clear that Democrats had accrued the 41 votes necessary to block Gorsuch from advancing. Democrats that did not vote Thursday to filibuster Gorsuch included Sens. Joe Manchin (D-VA), Heidi Heitkamp (D-ND), Michael Bennett (D-CO) and Joe Donnelly (D-IN).
As Democrats ramped up there filibuster threats, Republicans became more explicit in their hints that they would nuke the filibuster if Democratic senators blocked Gorsuch. Majority Leader McConnell (R-KY) confirmed Tuesday that he had the necessary 50 votes in his caucus to change the Supreme Court filibuster rules.
“We will not allow their latest unprecedented act on judicial nominations to hold,” McConnell said in a floor speech before Thursday’s vote. “This will be the first and last partisan filibuster of a Supreme Court nomination.”
After the initial vote Thursday, during which Democrats filibustered the nominee, Schumer engaged in a series of procedural moves to hold up the proceedings. He raised a number of parliamentary inquiries highlighting Republicans’ previous moves to obstruct lower-court nominees under President Obama, as well as their unprecedented blockade of Judge Merrick Garland, Obama’s choice for the Supreme Court seat Gorsuch seeks to fill. McConnell could be seen smirking during Schumer’s trolling, and after two votes called by Schumer to delay the next votes failed on party lines, McConnell was able to move forward in nuking the filibuster, with Sen. Orrin Hatch (R-UT), the Senate’s President pro tempore presiding.
Though many GOP senators had previously expressed discomfort with going nuclear on the filibuster, none defected from the vote to overturn the confirmation rules.
After the final vote to advance Gorsuch, McConnell gave high-fives to a few aides with him on the Senate floor and to the Majority Whip Sen. John Cornyn (R-TX).
In their move to block Gorsuch, Democrats have raised concerns about his conservative legal ideology, his independence from the Trump administration and his unwillingness to answer many of their questions during his confirmation hearings before the Senate Judiciary Committee. But this procedural showdown was a long time coming given years of escalating political battles in the Senate over judicial confirmations, including Republicans’ refusal even to consider Garland, Obama’s nominee to fill the vacancy resulting from the death of Justice Antonin Scalia. That’s the seat Gorsuch will likely fill.
“My Republican friends think they have cause to change the rules because we’re about to deny cloture to the nomination of Judge Gorsuch,” Schumer said Thursday in a floor speech before the vote. “We believe that what Republicans did to Merrick Garland was worse than a filibuster.”
Republicans counter that Democrats are to blame for the judicial confirmation process becoming more heated over the years. There were the filibusters they attempted to mount against President George W. Bush’s nominees, and their move under then-Majority Leader Harry Reid (R-NV) to go nuclear on the filibuster for lower-court nominees in retaliation for McConnell leading an obstruction campaign against them.
Some lawmakers, including Republicans, have said they fear the move to completely eliminate the judicial filibuster by going nuclear on the rules around Supreme Court nominees is a slippery slope towards ending the legislative filibuster. McConnell vowed Tuesday that the legislative filibuster was not in danger as long as he was majority leader.
There had been some hope in recent weeks that Democrats and Republicans could hash out a deal that would avoid a filibuster and the nuclear option being triggered this time around in exchange for some assurances on the next nomination Trump makes to the Supreme Court. Those discussions did not get very far, with Democrats saying the Garland blockade had eroded too much trust in their relationship with their Republican colleagues.
Gorsuch is a 49-year-old, Colorado-based judge serving on the U.S. Court of Appeals for the Tenth Circuit.
This post has been updated.
Correction: This post originally identified Joe Donnelly as a senator from Delaware. He, of course, represents Indiana. We regret the error.