This week, the United States Senate Judiciary Committee conducted confirmation hearings for Neil Gorsuch, the 49-year-old 10th Circuit U.S. Court of Appeals judge nominated by President Donald J. Trump to fill the vacant seat on the bench of the U.S. Supreme Court. Gorsuch, if confirmed, will fill the seat left by the late Justice Antonin Scalia, who passed away last year.
Despite positive support from both sides of the political spectrum for Gorsuch — who weathered his three-day hearing with poise — Senate Democrats are still threatening to filibuster his confirmation. Senate Minority Leader Chuck Schumer (D-N.Y.) made it clear on Thursday morning that Gorsuch would have to earn the required sixty votes needed to trigger cloture and end a Democrat filibuster. The senior U.S. Senator from New York tweeted:
Judge Gorsuch’s nomination will face a cloture vote & as I’ve said, he will have to earn sixty votes for confirmation. My vote will be “No.”
— Chuck Schumer (@SenSchumer) March 23, 2017
Senate Republicans could, however, employ a number of various procedural options that would allow them to thwart the efforts of their colleagues across the aisle mounting this filibuster. Senator Mike Lee (R-Utah), along with the Heritage Foundation, has suggested using the two speech rule (Senate Rule XIX). Others have called for Senate Majority Leader Mitch McConnell (R-Ky.) to invoke the nuclear option, as provided for in Senate Rule XXII.
This option, predicated on the precedent set by McConnell’s predecessor, Senator Harry Reid (D-Nev.) in 2013, would allow cloture to proceed upon the affirmative of a simple majority (51 votes), as opposed to a supermajority (three-fifths, or 60 votes). If Senator McConnell moves forward with the nuclear option, then Gorsuch would certainly be confirmed by the 52-seat Republican majority in the U.S. Senate.
Senate Minority Whip Richard Durbin (D-Ill.) noted of McConnell: “It does sound like he’s laying the groundwork for the nuclear option.” Durbin is among many Democratic senators who are gearing up for the likelihood that McConnell will indeed use the nuclear option if Senate Democrats solidify their voting block and kill cloture.
Yet, if the nuclear option is indeed invoked, it would guarantee an even easier path to the Supreme Court bench for the next nominee — who is likely to be selected by President Trump, should Anthony Kennedy or Ruth Bader Ginsburg retire.
Sources reported to Fox News on Thursday that Democrats were evaluating their options. Among those options could be an attempt to strike a deal with McConnell by offering Senate Republicans a vow to withhold obstruction of Gorsuch’s confirmation in exchange for McConnell’s hesitation on invoking the nuclear option.
This may in fact be the most likely scenario to play out. Aware of these consequences, Schumer’s early and staunch opposition to Gorsuch is likely a posturing maneuver to establish a position from which he plans to bargain with McConnell. McConnell has said that the Senate “[will] confirm [Gorsuch] before [leaving] for the April recess.” With that attitude, and McConnell’s history of cutting backroom deals, the nation could actually see a surprisingly smooth floor vote to confirm Neil Gorsuch as a United States Supreme Court Justice.
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