If Republicans have their way, Judge Neil Gorsuch will be the next Supreme Court Justice by Friday.
But if Democrats succeed in filibustering a vote to end debate on Gorsuch’s confirmation, Republicans would have to set a new Senate precedent, effectively changing Senate rules, to secure the nominee’s place on the Court.
In order to confirm a Supreme Court justice, the Senate must vote twice — first to end debate on the nominee (which requires at least 60 “yes” votes) and, secondly, to confirm the nominee (which only requires 51 “yes” votes).
So in order to get a final vote on Gorsuch, Republicans need at least eight Democrats (in addition to the 52 Senate Republicans) to agree to allow the vote to happen.
But as of Monday, 41 Democrats have said that they will filibuster Gorsuch’s nomination by voting against ending debate on his nomination. If the filibuster succeeds, the only way for Republicans to get Gorsuch on the high court is to use the “nuclear option,” or lower the number of votes necessary to end debate on a Supreme Court nominee from 60 to 51.
Because changing Senate precedent only requires a simple majority, Republican majority leader Mitch McConnell wouldn’t need any Democratic support to effectively change the rules. And even if two Republicans don’t support the nuclear option, Vice President Mike Pence could step in and cast the tie-breaking vote.
If enough Senate Republicans agree to use the nuclear option, the filibuster will no longer apply and Gorsuch will move on to a confirmation vote, likely on Friday. And because the final confirmation vote only requires a simple majority, Gorsuch would certainly be confirmed.
Although some Republicans are weary of using the nuclear option, Republican leadership has indicated they are confident they will succeed in convincing at least 51 members of the Senate to do so in order to push Gorsuch through.
“What I can tell you is that Neil Gorsuch will be confirmed this week,” Republican leader Sen. Mitch McConnell of Kentucky told “Meet the Press” on Sunday.
This isn’t the first time the nuclear option has been used. In 2013, Democratic Sen. Harry Reid, then the majority leader, used the nuclear option to lower the number of votes necessary to confirm executive branch nominees and lower court judges to a simple majority.
Republicans are now arguing that since the Democrats let “the genie out,” they’re forced to follow the Democrats’ lead and eliminate the filibuster option for Supreme Court nominees.
“When Harry did the deal and pulled the nuclear option out, once it’s been used once, it’s going to be used time and time again,” South Dakota Republican Sen. Mike Rounds told CNN.
But Democrats are adamant that Supreme Court picks should be popular enough to win 60 Senate votes.
“So instead of changing the rules, which is up to Mitch McConnell and the Republican majority, why doesn’t President Trump, Democrats and Republicans in the Senate sit down and try to come up with a mainstream nominee?” Mr. Schumer said on “Meet the Press” on Sunday.
Meanwhile, both Democrats and Republicans have voiced concern about the nuclear option.
Sen. Claire McCaskill, a Missouri Democrat, said last week that while she’ll vote “no” on both the procedural and confirmation votes for Gorsuch, she isn’t happy about the prospect of changing Senate precedent.
“While I have come to the conclusion that I can’t support Neil Gorsuch for the Supreme Court … I remain very worried about our polarised politics and what the future will bring, since I’m certain we will have a Senate rule change that will usher in more extreme judges in the future,” she said in a Medium post published Friday.
Sen. Susan Collins, a moderate Republican from Maine, voiced concern was similarly unhappy with the idea of making it easier for the Senate to bypass consensus on future Supreme Court nominees.
“I don’t want to change the rules of the Senate, and I hope we’re not confronted with that choice,” she told CNN.
Republican Sen. Lindsey Graham said using the nuclear option would be “bad for the Senate.”
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