As leading Democrats, including Sen. Chuck Schumer and Sen. Elizabeth Warren, called on Republicans to delay a confirmation vote on Supreme Court nominee Neil Gorsuch, some in the GOP leadership are beginning to talk openly about breaking the filibuster wide open. In an interview with Fox News, Sen. John Thune of South Dakota said Wednesday that Republicans were prepared to use the “nuclear option” to confirm Gorsuch if Democrats made it unavoidable.
“We will do what is necessary to confirm Judge Gorsuch on the Supreme Court, yes,” he said.
Republicans only have 52 ironclad votes in the Senate, which won’t be enough to confirm Gorsuch using the current rules of the body. And while there appeared to be at least a possibility of convincing enough Democrats to vote for him to avoid a problem, that possibility is fading in the wake of FBI Director James Comey’s testimony before the House Intelligence Committee.
“It is unseemly to be moving forward so fast on confirming a Supreme Court justice with a lifetime appointment while this big gray cloud of an FBI investigation hangs over the presidency,” Sen. Schumer said on Tuesday. “You can bet if the shoe were on the other foot and a Democratic president was under investigation by the FBI the Republicans would be howling at the moon about filling a Supreme Court seat in such circumstances.”
Sen. Mitch McConnell is said to be reluctant to invoke the nuclear option, which would lower the threshold of a Supreme Court confirmation to a simple majority. The trouble with adjusting the rules in this way is that you hand that power to the Democrats if and when they take control of the Senate.
On the flipside, some Democrats have expressed uneasiness with forcing McConnell to take that measure as well, since it would clear the way for Trump’s next Supreme Court appointment, should another seat become vacant in the next four years. Not only could that seat currently belong to a liberal judge, it could be filled with virtually anyone who pleased Republicans.
On Tuesday, McConnell wondered if any Trump-nominated Supreme Court judge could win approval from the Democrats.
“If Judge Gorsuch can’t achieve 60 votes in the Senate, could any judge appointed by a Republican president be approved with 60 or more votes in the Senate?” McConnell asked. “If they don’t find Gorsuch acceptable, are they taking the position the vacancy should never be filled? At all?”
With the GOP healthcare bill under a cloud of uncertainty, Republicans need a big win on Capitol Hill. If the vote on the AHCA fails in the House and the vote on Gorsuch fails in the Senate, the political fallout will be too much to bear. McConnell, Trump, and the rest of the party leadership surely understand this. If the nuclear option is what it takes to put this nominee on the court, then that’s what it takes.