A battle years in the making over the politicization of the Senate’s judicial confirmation process will come to a head next week with the final push to confirm federal appeals court Judge Neil Gorsuch to the Supreme Court.
The stage is being set with floor speeches, press conferences, and a committee vote Monday to advance President Trump’s first Supreme Court nominee out of the Senate Judiciary Committee. The drama surrounding his floor vote, slated for next Friday, is not about whether Gorsuch will be confirmed, but if the opportunity for the minority party to filibuster Supreme Court nominees will be blown up in the process.
A press conference Wednesday hosted by Senate Judiciary Committee Republicans with former clerks of Gorsuch was ostensibly meant to highlight the judge’s resume, his decade on the U.S. Court of Appeals for the 10th Circuit, and his temperament. But just as prominent was Republicans’ pleas that Democrats don’t filibuster Gorsuch and put the onus on GOP senators to trigger, as it’s called, the “nuclear option.”
“I’m here to tell you he’s going to be on the Supreme Court because he’s earned the right to be there. The only question is ‘how,’ it’s not even ‘when,’” Sen. Lindsey Graham (R-SC) said at the press conference, held in front of the Supreme Court, where an amateur chorus sang a pro-Gorsuch song and counter-demonstrators chanted, “Don’t change the rules, change the nominee.”
“To my Democratic colleagues, if he can’t get 60 votes, Neil Gorsuch, that tells me that you don’t care about qualifications any longer,” Graham said.
This moment is a longtime coming. Republicans will say it began with Robert Bork, the Reagan nominee that was defeated in an up-or-down Senate floor vote due to concerns of his far-right judicial record. (Six Republicans joined Democrats in voting against his confirmation).
Democrats point to the obstruction campaign that then-Minority Leader Mitch McConnell (R-KY) waged against President Obama’s lower court nominees, that culminated in the Senate’s Democratic majority going nuclear on the filibuster for non-Supreme Court confirmations.
But the fight reached new heights with Republicans’ treatment last year of federal appeals court Judge Merrick Garland, the nominee President Obama selected to fill the seat left by the death of Justice Scalia, where Gorsuch now seeks to sit. Claiming a dubious standard that vacancies opened in a presidential election year should be filled by whomever wins the election, Republicans refused to grant Garland even a confirmation hearing. While there are certainly concerns from the left about Gorsuch’s jurisprudence, his willingness to buck the Trump administration and the dark money groups supporting his confirmation, the fact that an unprecedented blockade allowed his nomination in the first place is an inescapable element of the current fight.
“I hope that [the Democrats] will recognize, regardless of what was done to Merrick Garland, and I believe he should have been given fair consideration, that we’re past that now,” Sen. Susan Collins (R-ME), one of only a few Senate Republicans to question the Garland blockade, told reporters last week.
It’s worth noting that when Clinton was expected to win the election, a few Republicans were suggesting they’d continue their blockade, and it was the Democrats, including then-Minority Leader Harry Reid (D-NV), who were floating the nuclear option.
As more Democratic senators commit to mounting a filibuster, the game is now about who will get blamed for further eroding the Senate norms that are supposed to retain the upper chamber’s more collegial and cooler-headed tenor.
After Wednesday’s press conference, Senate Judiciary Chair Chuck Grassley (R-IA) warned that it was a “slippery slope” if Democrats filibuster Gorsuch that could lead to the end of the filibuster on legislation as well.
“Then you’ve made the Senate from a deliberative point of view, just like the House, and you want to protect some place in our political system where minority views are considered,” Grassley said.
Minority Leader Chuck Schumer (D-NY) has declared his desire for a Democratic filibuster of Gorsuch. Now Republicans’ hopes rest on enough defections from Democrats representing red-states where Trump found deep support in the presidential election, and particularly those whose seats are up again in 2018.
The decision announced this week by Sen. Bill Nelson (D-FL) – a centrist third-term senator facing re-election next year – to support a Gorsuch filibuster may have been the been the tell that Republicans’ pleas for Democrats not to filibuster are falling on deaf ears.