Counting Votes: Gorsuch May Need Nuclear Path to Supreme Court

WASHINGTON – Judge Neil Gorsuch may ultimately take a seat on the U.S. Supreme Court, as promised by Senate Republican Leader Mitch McConnell (R-Ky.), but he may wind up having to take a circuitous route that requires a major rules change in the upper chamber.

Gorsuch, 49, currently serving on the U.S. Tenth Circuit Court of Appeals in Denver, is President Trump’s choice to replace the late Justice Antonin Scalia on the high court – one of the reasons why the Gorsuch nomination remains up in the air.

Senate Democratic Leader Chuck Schumer (D-N.Y.) has vowed to filibuster the Gorsuch nomination, citing the jurist’s conservative views and his reluctance to answer numerous questions posed by members of the Senate Judiciary Committee, particularly the panel’s Democrats, during his confirmation hearing.

It’s doubtful Schumer, known as a sharp politician on the Hill, would launch an effort to derail the Gorsuch nomination if he didn’t have some inkling he has enough Democratic votes in his pocket to make it stick. Under current rules, if one side instigates a filibuster, the opposing side must attract 60 votes to invoke cloture, which ultimately leads to a vote.

The potential problem is Republicans hold only 52 seats, while Democrats maintain 46 along with two independents who caucus with the Democrats. The GOP has to find eight Democrats to force a vote and it’s questionable whether that can be achieved.

Two Democrats, Sen. Joe Manchin of West Virginia and Sen. Heidi Heitkamp of North Dakota, the caucus’s two most conservative members, have indicated they will not join in a filibuster, giving Republicans potentially 54 votes.

Picking up the remaining six could prove problematic. Thus far, three Democratic lawmakers – Sen. Pat Leahy of Vermont, Sen. Sherrod Brown of Ohio, and Sen. Ben Cardin of Maryland – have announced that they will vote against Gorsuch if his nomination hits the floor, but remain noncommittal about participating in a filibuster.

In a statement delivered via Twitter, Leahy said, “I am never inclined to filibuster a SCOTUS nom,” and he will wait to see how Gorsuch responds to several written questions he has submitted. As of now, Leahy said, “I do not believe I can support Judge Gorsuch. He did not answer basic Qs & was selected by extreme interest groups w an agenda.”

If Leahy, Brown and Cardin reject the filibuster tactic, Republicans still need three votes and are counting Democratic senators from swing states, particularly lawmakers from states that Trump carried in 2016. That list includes Sens. Bill Nelson (D-Fla.), Joe Donnelly (D-Ind.), Debbie Stabenow (D-Mich.), Claire McCaskill (D-Mo.), Jon Tester (D-Mont.), Bob Casey (D-Pa.) and Tammy Baldwin (D-Wis.).

But Nelson, Casey, Baldwin and Stabenow have already made it clear they support the filibuster, providing Gorsuch supporters with little breathing room.

“After reviewing Judge Gorsuch's rulings, it is clear that he has a long record of siding with special interests and institutions instead of hard-working Americans,” Stabenow said. “And, therefore, in my judgment, he does not meet this standard of balance and impartiality.”

Twenty-three Democrats are on the record supporting the filibuster.

Regardless, McConnell offered assurances that the Gorsuch nomination will hit the floor and he will be confirmed.

“We’re going to get Judge Gorsuch confirmed,” McConnell told reporters. “It’ll really be up to [Democrats] how the process to confirm Judge Gorsuch moves forward.”

One option open to McConnell, which he has refused to rule out, is a change in Senate rules to prohibit a filibuster of a Supreme Court nominee. Such a move would require only 50 votes, with Vice President Mike Pence casting a vote in case of a tie.

This so-called “nuclear option” would prove controversial but it has been employed before in regard to lower-court nominees. When Republicans consistently filibustered judicial nominees below the high court level under former President Obama, in November 2013 then-Senate Democratic Leader Harry Reid, of Nevada, controlling the majority, changed the rule to prohibit filibusters on district judge and court of appeals nominees, but kept it intact for those nominated to the Supreme Court.

Reid’s gambit attracted protests from GOP lawmakers at the time, including McConnell, who called it “a sad day in the history of the Senate” and characterized the move as “power grab.”

A full-blown filibuster of a Supreme Court nominee would be unprecedented. In 1968, Republicans filibustered President Lyndon Johnson’s nominee to serve as chief justice, Abe Fortas, but he was already a member of the court. A handful of nominees in recent years have stepped aside – Harriet Miers in 2005, nominated by President George W. Bush, and Judge Douglas Ginsburg, nominated by President Reagan in 1987 – when it appeared they would go down in defeat.

Twelve Supreme Court nominees have been rejected by a vote of the Senate, the most recent being Judge Robert Bork, also nominated by Reagan, in 1987.

Schumer announced he intended to filibuster the nominee because he doesn’t believe Gorsuch will provide an appropriate check on Trump’s excesses and because of his overt conservative approach. But it’s also true that Democrats are still smarting over the treatment accorded Judge Merrick Garland, who was nominated by Obama for the slot on the bench Gorsuch is seeking.

Republicans refused to consider the Garland nomination, asserting the position came open during the final year of his term and that the next president should make the decision.

“After the Senate’s unprecedented abdication of constitutional responsibility with respect to the Garland nomination, we must begin to restore faith in the Supreme Court,” said Sen. Chris Van Hollen (D-Md.). “That requires a nominee who is widely viewed to be an impartial administrator of justice – someone who is truly in the mainstream and who can earn the support of at least 60 senators. I will insist that this nominee be held to that standard.”

Democrats have succeeded in delaying action on the nomination. Sen. Chuck Grassley (R-Iowa), chairman of the Judiciary Committee, had hoped to conduct a confirmation vote on March 27 but Democrats used a committee rule to delay action for one week, pushing it to April 3. The panel, controlled by Republicans, is almost certain to approve Gorsuch.

McConnell hopes to deal with the nomination before lawmakers leave on a two-week Easter break, which begins on April 7.