Will Senate Republicans Invoke the ‘Nuclear Option’ in Gorsuch Confirmation Fight?

Current Senate Majority Leader Mitch McConnell (R-KY) at CPAC 2011 in Washington, D.C. (Unmodified photo by Gage Skidmore used under a Creative Commons license. http://bit.ly/1jxQJMa)

With the vote to confirm Judge Neil Gorsuch to the Supreme Court slated for this week, observers across the country are eagerly awaiting what is shaping up to be one of the premier political battles of the year.

Today, a third Democrat, Sen. Joe Donnelly (D-IN) publicly announced his support for the confirmation of Gorsuch to the Supreme Court. He now joins the likes of Sens. Heidi Heitkamp (D-ND) and Joe Manchin (D-WV) as members of the Democratic Caucus who have broken ranks to endorse a nominee who would essentially return the court’s ideological balance to its state prior to last year’s passing of Associate Justice Antonin Scalia.

While the vacancy has existed since Scalia unexpectedly died last February, Senate Republicans ensured the opening remained by refusing to entertain former President Obama’s nomination of Chief Judge Merrick Garland to fill Scalia’s seat on the bench.

On January 31, President Trump announced the nomination of Gorsuch, who is supported by Washington, D.C. based conservative think tank The Heritage Foundation.

Senate Minority Leader Chuck Schumer (D-NY) has vowed to lead a Democratic filibuster of the nomination.

With only a 52-48 majority in the Senate, and only 3 Democrats having announced their support for Gorsuch, Republicans currently lack the 60 votes that are traditionally necessary to invoke cloture and end a filibuster.

However, GOP senators do have what is called the “nuclear option” that would allow them to change the rules of the Senate and allow Supreme Court nominees to be confirmed with just a simple majority of senators.

In late 2013, Democrats, led by former Senate Majority Leader Harry Reid (D-NV), amended Senate rules to allow most executive nominees to be confirmed with a simple 51-vote majority; however, the change did not apply to Supreme Court nominees.

At the time, conservatives opposed the move, arguing that it infringed upon the Senate minority’s rights. Democrats, on the other hand, viewed it as a means to make the Senate more productive.

Though this option would almost ensure Gorsuch would become the newest Supreme Court justice, it would also set a precedent that could come back to haunt Republicans in the future.

By changing Senate rules this week, McConnell and his Republican colleagues would ensure that any future Senate majority, regardless of party, could confirm Supreme Court nominees despite any objections of the minority.

This presents a dilemma for Republicans in the Senate: Do they go nuclear for Gorsuch and enter uncharted political waters, or do they concede a catastrophic loss in a time when they are eager to score a victory?

McConnell says he is confident Gorsuch will be confirmed, but refuses to commit outright to using the nuclear option.

Other Republicans, including Trump himself, are more keen on taking this step.

According to Politico, the president stated in early February, “If we end up with that gridlock I would say, ‘If you can, Mitch, go nuclear,’”

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