Democratic Filibuster Over Gorsuch May Lead to Nuclear Option
A Senate battle over the Supreme Court nominee looms ahead
By Amanda Westlake
The Progressive Teen Staff Writer
WHENEVER A SUPREME COURT JUSTICE PASSES AWAY OR RETIRES, the vacancy left on the court instantly becomes a point of interest. As justices serve life terms, new spots don’t open up all that often — and when they do, the nomination of a new justice can be a complex process. The Supreme Court is the highest court in the United States, and the few who are selected to serve on it have a massive amount of influence on the law. In the case of Justice Antonin Scalia, who died last February, the battle to find his replacement has been even more contentious and partisan than usual.
In March of 2016, then-President Obama nominated Judge Merrick Garland to fill the empty seat in what should have been a quick confirmation for the moderate, experienced, and well respected jurist. However, Senate Republicans insisted on obstructing the nomination, with Majority Leader Mitch McConnell claiming that the new justice should be chosen by the next president, as Obama was nearing the end of his last term. In an unprecedented move, Garland was never allowed so much as a confirmation hearing.
Instead, the responsibility of choosing the next member of the Supreme Court shifted to the newly elected President Trump. In late January, he announced his choice, declaring Judge Neil Gorsuch to be the nominee.
After the nomination was announced, the question on the minds of many was how Senate Democrats would act in the Republican-controlled Congress. On one hand, they could choose to filibuster the nomination, forcing the GOP to either put up a new nominee or go with the nuclear option and eliminate the filibuster for Supreme Court picks. This dissent would not only serve as retaliation for the obstruction of Garland, but prevent an extremely conservative justice from entering the court.
On the other hand, they could let the nomination through, ensuring that the filibuster is kept intact. Justice Scalia was the most conservative justice on the court, so his replacement with the similarly minded Gorsuch would restore the previous ideological balance of the court at five conservative justices to four liberals. However, if President Trump is called on to fill a vacancy left by a liberal justice in the future, the court would become significantly more conservative, and there are worries that justices such as Ruth Bader Ginsburg, who recently turned 84, could be in danger of failing health. Some Democrats believe that the most prudent course would be to save the filibuster for future nominations, although it could still be eliminated then, too.
On March 23rd, after Judge Gorsuch’s confirmation hearings, Senate Minority Leader Chuck Schumer announced his intention to filibuster. A filibuster takes 60 votes to defeat with a cloture, so for the nomination to still pass, he needs at least 41 votes. Although Schumer seems confident that he can control his party, it is possible that constituent pressure might lead some Democrats, especially those who represent red states, to vote against party lines. It would take only eight Senators voting for a cloture to end debate and confirm Gorsuch.
Already, Democratic Senators Heidi Heitkamp and Joe Manchin have declared their support for Gorsuch. Both of their reasons for this decision focus on Gorsuch’s qualifications, with Heitkamp noting in a statement that “he has a record as a balanced, meticulous, and well-respected jurist who understands the rule of law.” However, this is not overly surprising, given the fact that they are both up for reelection soon in the Republican states of North Dakota and West Virginia.
As of March 31st, 31 Democrats have declared they would stand with Schumer and vote against the nomination, leaving only 15 undecided or undeclared. Depending on which way these senators choose to vote, Democrats could achieve the first successful partisan filibuster for a Supreme Court confirmation.
If the Republicans do fail to get Gorsuch in with the filibuster intact, it is highly likely that they would attempt to get rid of it altogether. This is similar to how Democrats eliminated it for executive branch nominees in 2013, when the former minority Republicans were blocking Obama’s cabinet picks. They left the filibuster in place for only Supreme Court nominees, but depending on how things play out, this could soon change.
Elimination would take 51 votes, a difficult (but not unattainable) number, as the GOP holds 52 senate seats. Assuming that no Democrat would vote in favor, McConnell could only stand to lose two votes from his party. It is unclear if he would be able to meet this standard or not. If he did end up being successful, bipartisan agreement would no longer be necessary for Supreme Court justices, and the minority party would lose a significant amount of power. Any future Trump nominees for at least the next two years would be easily pushed through the confirmation process. However, Republicans will eventually be in danger of losing their majority, and the change in rules could be ultimately be damaging to the party who passed it in the first place.
With Republicans controlling both the White House and the Senate and a filibuster removal on the table, it is likely that Gorsuch will be confirmed one way or another. If not him, an equally conservative judge would be nominated instead. The real significance lies in how confirmation is achieved. In a time where partisan politics have become increasingly relevant, there is a real chance that the Gorsuch nomination may have a lasting impact on the role of bipartisan cooperation in Congress.
