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McConnell Prepared to Invoke ‘Nuclear Option’ to Confirm Gorsuch

Eric Pianin
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Senate Majority Leader Mitch McConnell (R-KY) vowed on Sunday that – one way or another – the Senate will confirm President Trump’s nomination of Judge Neil Gorsuch to the Supreme

McConnell has threatened to change the rules so that the Republicans can confirm Gorsuch as an associate justice with a simple majority instead of the 60-vote super majority typically required.

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In a chamber where the Republicans hold a narrow 52 to 48 seat majority, McConnell would need to round up at least eight Democrats to achieve a super majority – a task that Senate Minority Leader Chuck Schumer said today is virtually impossible. Just three Democrats have announced they will support Gorsuch while a few others are mulling over their options.

If McConnell blows up the rules by invoking the “nuclear option” to get Gorsuch’s nomination through the Senate with mostly Republican votes, it will risk provoking all-out warfare with the Democrats.

Although the Republicans ignored the Democrats in their first ill-conceived effort to rewrite the Affordable Care Act, they will have little choice but to seek their support on virtually all the remainder of Trump’s agenda, including tax reform, infrastructure, and spending legislation crucial to avoiding another government shutdown late this month and raising the debt ceiling.

“Judge Gorsuch deserves to be confirmed,” McConnell asserted during an appearance on the “Fox News Sunday” program. “Exactly how that happens, Chris, will be up to our Democratic colleagues. I think it is noteworthy that no Supreme Court justice has ever in the history of our country been stopped by a partisan filibuster -- ever.”

Pressed by Fox News host Chris Wallace about whether he would invoke the nuclear option and cut off the Democratic filibuster if necessary, McConnell replied, “What I’m telling you is that Judge Gorsuch is going to be confirmed. The way in which that occurs is in the hands of the Democratic minority. And I think we will find out exactly how this will end – but it will end.”

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Later during a joint appearance with McConnell on NBC’s Meet the Press, Schumer said it’s “unlikely” Republicans can muster a 60-vote supermajority to confirm Gorsuch and urged Trump and the Republicans to pull the nomination. “So instead of changing the rules, which is up to Mitch McConnell and the Republican majority, why doesn’t President Trump, Democrats and Republicans in the Senate sit down and try to come up with a mainstream nominee?” Schumer said.

“Look, when a nominee doesn’t get 60 votes, you shouldn’t change the rules, you should change the nominee,” he added.

McConnell, the savvy, battle-tested Kentucky Republican, is under enormous pressure to deliver a big victory for Trump and House Speaker Paul Ryan (R-WI) following their humiliating failure to unite conservative and moderate members of their party around an Obamacare replacement bill in the House.

Trump has goaded McConnell to “go nuclear” since the president announced his choice of Gorsuch during a nationally televised White House ceremony the evening of Jan. 31. Trump picked Gorsuch from a list of 21 potential nominees to the Supreme Court that Trump’s campaign released last year. Trump boasted that Gorsuch is the “very best judge in the country.”

Related: Trump Would Favor Senate Rule Change If Supreme Court Choice Blocked 

Gorsuch, 49, a federal appeals court judge on the 10th circuit in Denver, looked like a shoo-in to succeed the late associate justice Antonin Scalia, thanks largely to his Ivy League education, boyish good looks and sterling conservative credentials.

The widely respected jurist is pro-life and pro-religious liberty and is viewed by many as at least as conservative as Scalia. His appointment if confirmed will bring the nine-member High Court back to the same right-of-center balance that existed prior to the 79-year-old Scalia’s death. As McConnell frequently points out, Gorsuch received high ratings from the American Bar Association, 97 percent of the opinions he wrote were unanimous and he was reversed by the Supreme Court only once in his career.

But Schumer and many other Democrats in the Senate soured on Gorsuch throughout two grueling days of testimony and private meetings. Some said they found Gorsuch to be evasive on hot-button issues like abortion, gun-rights and labor-management issues. They questioned whether he would be independent enough on cases challenging Trump administration policies. Others complained that Gorsuch was a strict constitutional constructionist whose views were outside the mainstream of American jurisprudence.

Schumer complained that Trump never conferred with Democrats before choosing Gorsuch, in contrast with the past practices of both Republican and Democratic presidents who consulted with senior members of the opposing party. Instead, Trump relied on the recommendations of a few arch-conservative think tanks, including the Federalist Society and the Heritage Foundation.

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Further exacerbating tensions is the lingering Democratic anger that McConnell and other Senate Republican leaders refused to consider former President Obama’s nominee for the same Supreme Court vacancy, Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia.

Obama nominated Garland a year ago to fill the vacancy caused by Scalia’s death. But McConnell refused to hold hearings on Garland, insisting that there was precedent the winner of the 2016 presidential election to fill the vacancy.

Until today, only two Democrats – Sens. Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota – announced they will support Gorsuch’s nomination. Both of those senators are from red states that voted overwhelmingly for Trump last year and face difficult re-election campaigns in 2018. However, a third Democrat, Sen. Joe Donnelly of Indiana, announced today that he, too, would vote for Gorsuch.

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The 60-vote requirement for cutting off a filibuster of a Supreme Court nomination was preserved as part of a highly controversial rules change orchestrated by former Senate Majority Leader Harry Reid of Nevada in 2013 when the Democrats were still in control of the Upper Chamber.

Reid at the time was frustrated and angry with the Republicans for holding up confirmations of many of Obama’s nominees for federal appellate court judgeships and changed the rules to require a simple 51-vote majority for all federal judgeships except for those on the Supreme Court.

At that time, McConnell blasted Reid for changing a rule that he predicted would come back to haunt the Democrats. “Obviously, you can break the rules to change the rule to achieve that,” he seethed during a floor speech. “But some of us have been around here long enough to know the shoe is sometimes on the other foot.”

McConnell’s warning to the Democrats was prescient, and now he’s likely to turn the tables on them by killing off the 60-vote requirement for Supreme Court nominees.

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Sen.John Cornyn (R-TX) left little doubt today that the Republicans would confirm Gorsuch even if the GOP had to resort to the most extreme tactics. “This is [the Democrats’] last gasp from trying to prevent him from being confirmed,” Cornyn told CBS’s Face the Nation. “But they won’t, and Judge Gorsuch will be confirmed this week one way or another.”

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