Republicans may use the "nuclear option" to cut short a Democratic filibuster of Supreme Court nominee Neil Gorsuch
The current rules require 60 votes to break a filibuster, but Democrats cut that to 51 during the Obama administration for executive branch agencies and lower court judges
The Senate may be a week away from turning into the House.
Senators from each party are agonizing over the potentially toxic consequences if Supreme Court nominee Neil Gorsuch is filibustered by Democrats and Republicans respond with the “nuclear option,” a move allowing the GOP to quickly change Senate rules so the judge tapped by Republican President Donald Trump could be approved on a party-line vote.
They worry that by getting rid of the 60-vote threshold to defeat a filibuster on the nomination, the Senate is one step away from turning into a mirror-image of the House – a chamber where bipartisanship isn’t needed to pass bills and whichever party is in the majority can govern with little or no input from the minority party. Republicans currently hold a 52-48 majority in the Senate.
“We can turn the Senate into the House of Representatives with a six-year term. Will that really benefit anybody?” asked Democratic Sen. Patrick Leahy of Vermont, the longest serving member of the Senate.
Republican Sen. Jeff Flake of Arizona, who served a dozen years in the House – both in the majority and the minority – said maintaining the 60-vote filibuster for legislation is “extremely important.”
“It makes the Senate the Senate,” he said. “The requirement that you need to reach across the aisle is a good thing. It makes legislation endure. You see what happens, like Obamacare, when one party pushes something through without the aid of the other party.”
If the legislative filibuster were to be diminished, it could leave that country without that critical “cooling saucer” the Founding Fathers envisioned for the Senate and allow emotionally-charged issues to race through a one-party-dominated Washington – as is the case now with a Republican in the White House and GOP control of both the House and Senate – with few chances to slow it down.
Sen. Bob Corker, R-Tennessee, warned that because each party has been open to changing Senate rules through the nuclear option, either party could use it in the future to force legislation through.
“It will just take one tough legislative issue coming up and somebody else will do it,” he said. “I think we all know that’s where we’re headed.”
Senate Minority Leader Chuck Schumer, D-New York, is seeking to find 41 votes to block Gorsuch. Liberals both worry about Gorsuch’s conservative record and remain upset Republicans refused to vote last year on Merrick Garland, President Barack Obama’s nominee to join the Supreme Court.
Democrats lit fuse in 2013
Democrats were the first to use the nuclear option back in 2013 when then-Senate Majority Leader Harry Reid made it easier for Democrats to overcome GOP filibusters of Obama’s executive branch nominees and all judicial picks other than for the Supreme Court.
Reid’s decision infuriated Sen. Mitch McConnell, R-Kentucky, who is now the majority leader and who is leading the charge to use the procedure for Gorsuch. Republicans argued Reid broke Senate rules that typically require 67 votes to change a Senate rule by simply declaring he could do it with 51 votes. Now Republicans are planning that same tactic.
“What’s happening in America is that the base of each party is demanding those things and unfortunately, the Senate has been willing to respond to the base to break the rules for a short-term outcome that changes the nature of the Senate,” said Corker, who acknowledged the frustration over the overuse of the filibuster has been building for year. “Both sides have abused the heck out of the filibuster.”
“It would hurt the country when you’ve got this far right, kind of mob rule in the House,” said Sen. Sherrod Brown, D-Ohio, who also served in the House. “That hurts the country overall and it would hurt the country even more if it infected the Senate.”
Sen. Rob Portman, R-Ohio, who served in the House for 12 years, said the “partisan divide will be even deeper for a while” if Republicans use the nuclear option for Gorsuch. He said he is concerned it could be a “stepping stone to taking away the legislative filibuster.”
But Portman, like other senators interviewed for this story, said he didn’t want to see it happen and didn’t think it would.
“I don’t see an interest in doing that among really any of my colleagues at this point,” he said. “Certainly our leadership has made the point repeatedly they are not interested in going down that road.”
“No one is in favor of doing away with the legislative filibuster,” promised Sen. John Cornyn of Texas, the second-ranking GOP leader.
“I think too many members would rebel against that – but we’ll see,” said Brown.
“I am concerned there is pressure,” said Flake about changing the legislative filibuster. “I think that’s safe because there are a number of us on the Republican side who won’t go there.”
CNN’s Ashley Killough contributed to this report.