The nuclear option lowers the threshold for senators needed to confirm a SCOTUS pick
Republicans are considering using it to get Neil Gorsuch confirmed
Sen. Orrin Hatch of Utah, the longest serving Republican senator and a Senate traditionalist, told CNN Monday he will vote for the “nuclear option” if it’s needed to break a Democratic filibuster of Judge Neil Gorsuch’s nomination to the Supreme Court.
Hatch said the controversial procedural move, which would be instituted by Senate Majority Leader Mitch McConnell, would be “a very bad thing” for the Senate – but would be acceptable if it gets Gorsuch installed on the high court.
The nuclear option would change Senate rules to lower the threshold for breaking a filibuster of Supreme Court nominees from 60 votes to 51, meaning Republicans could advance Gorsuch without the support of any Democrats. Republicans would take the rare and contentious step over the objections of Democrats, who themselves changed the rules on Republicans in 2013 when they lowered the filibuster threshold for all other presidential appointments besides the Supreme Court.
Many Senate institutionalists worry that changing the filibuster rules would diminish the chamber’s role of finding bipartisan solutions to the nation’s problems and acting as the “cooling saucer” to the sometimes emotionally-charged actions of the House, where rules allow the majority to dominate the minority.
Senate Minority Leader Chuck Schumer announced Thursday that Democrats would filibuster Gorsuch, meaning Republicans, who hold a 52-48 advantage, would have to pick up the support of eight Democrats to overcome the blocking procedure.
“I can’t believe that the Democrats would do that,” said Hatch, a former chairman of the Judiciary Committee. “I know there are a few radicals that might do that but I would think the vast majority would say this is a very good man.”
Only two Democrats – Sens. Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota – have signaled they might vote against a filibuster. Democratic leadership aides have said they expect most Democrats to support a filibuster, and many have already expressed their plans to do so. Meanwhile, some Democrats have said they oppose Gorsuch but haven’t spoken directly to whether they will filibuster him.
“I will vote no on cloture,” said Sen. Sheldon Whitehouse, a Democrat from the blue state of Rhode Island and a vocal Gorsuch critic, speaking of the procedural motion involved.
But for senators from red and purple states, the calculus on Gorsuch is trickier.
“I’m not going to talk about Gorsuch,” said Sen. Claire McCaskill of Missouri as she blew past reporters on the way to vote.
McCaskill is under intense pressure by Republicans to vote to break a Gorsuch filibuster, and she’s up for re-election in a state won by President Donald Trump.
Sen. Joe Donnelly of Indiana declined to answer reporters’ questions Monday on Gorsuch, directing them to call his office instead.
Sen. Jon Tester of Montana, who is also up for re-election, was less guarded.
“Probably (we’ll) have an announcement sometime either later this week or next week,” he said calmly. “Filibuster and the vote on him are the same in my book. It’s always been that way since I’ve been here.”
One senior Democratic senator, Patrick Leahy of Vermont, tweeted that he is not supporting Gorsuch’s confirmation, but at the same time he’s “never inclined” to filibuster a Supreme Court nominee.
“I need to see how Judge Gorsuch answers my written Qs, under oath, before deciding,” Leahy said on whether he’ll filibuster.
The second-ranking Senate Republican, John Cornyn of Texas, alled Leahy’s comments “hopeful” and said Republicans were trying to talk to some Democrats about preventing a filibuster.
“There are a number of conversations taking place. I don’t think we’re where we hope to be but they, I think, are putting off decisions until they know they have to vote,” Cornyn said.
Hatch’s comments came the same day Republicans began a major push to get Gorsuch confirmed. The Senate was supposed to be focused on passing the repeal and replace bill for the Affordable Care Act, but after it was surprisingly defeated in the House Friday, senators turned in earnest to Gorsuch a week earlier than anticipated.
The Senate Judiciary Committee is expected to clear Gorsuch next Monday, and GOP leaders have vowed to have him confirmed by the end of that week, before leaving town for a two-week recess.
“Look, we know that our Democratic friends are under an enormous amount of pressure from some on the far left who want them to resist. It’s clear that many radical special interest groups simply refuse to accept the results of the election and would like nothing more than to obstruct the serious work before the Senate,” McConnell said on the floor. “This much is clear: If our Democratic colleagues choose to hold up this nominee, then they’re acknowledging that they’ll go to any length to block any Supreme Court nominee of a Republican president. This isn’t about the nominee at all.”
Sen. Lindsey Graham, who has negotiated resolutions during past Senate eruptions over judicial nominations, said he is prepared to vote for the nuclear option even though he would prefer not to.
“I think it would be bad for the Senate,” he acknowledged.
But asked if he would try to head off the crisis as he has done before, Graham said: “I don’t think so.”
Another long-serving Republican senator, Richard Shelby of Alabama, defended the use of the nuclear option.
“We have an outstanding nominee,” Shelby said. “If the Democrats want to filibuster I think we ought to make sure that he’s confirmed. Period.”
Asked if he was worried the changes to the filibuster rules would alter the Senate’s DNA, Shelby said no and blamed Democrats for using the nuclear option first.
“If you asked me that 10 years ago, I might have had a different opinion. But majorities rule. Majorities traditionally always rule. And remember the filibuster is not in the Constitution. It’s not in any statute. It’s not the law. It’s a rule,” he said. “Democrats have already broken the rule.”
Headed to votes Monday evening, Sen. Lamar Alexander, R-Tennessee, another veteran senator with a reputation for working across the aisle, was not interested in talking about the nuclear option after reporters peppered him with questions about the failed health care bill.
“Let’s do one thing at a time,” a slightly flustered Alexander said, before he walked away from reporters.