Friday’s the day that either Neil Gorsuch gets confirmed as a Supreme Court justice, Mitch McConnell pledged yesterday, or … he goes nuclear and Gorsuch gets confirmed anyway.”Exactly how that happens,” McConnell warned, “will be up to our Democratic colleagues.” McConnell didn’t specifically pledge to follow the Reid Option to strip the minority of the filibuster on all appointments, but the implication was clear. One way or another ….
“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. I think during the course of the week we will find out exactly how this will end, but it will end with his confirmation,” McConnell added.
McConnell defended the Senate Republicans’ potential use of the nuclear option and dismissed Democrats’ relying on the filibuster to slow down the confirmation process.
“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. In fact, the business of filibustering judges is a fairly recent invention,” McConnell said. “And in particular, Sen. Schumer convinced his colleagues after Bush 43 got elected to start filibustering judges.”
It got a little tougher to avoid the nuclear option yesterday. Jon Tester (D-MT), whose red-state seat might have needed a little protection next year, declared that he would join the filibuster against Gorsuch. That leaves McConnell five Democrats short of mooting the Reid Option with not many more left undecided:
Democratic Sen. Jon Tester of Montana says he will oppose Judge Neil Gorsuch’s nomination to the Supreme Court.
Tester says he’s basing his decision on the judge’s past cases because Gorsuch didn’t directly answer questions when the two met or during the confirmation hearing.
Tester says he found troubling Gorsuch’s record on privacy and that he thinks Gorsuch places corporations over people.
It’s beginning to look even more like Nuclearmas than on Friday, when Claire McCaskill (D-MO) announced she would filibuster Gorsuch as well. But does McConnell have the votes to invoke the Reid Option of changing the precedent with a simple majority? The worry now in the upper chamber is that it will lead to a chain reaction that will wipe out the legislative filibuster as well, which might have some of the Republican caucus skittish:
“The thing I worry most about is that we become we like the House of Representatives. What’s the next step? Legislation?” said Sen. John McCain (R-Ariz.).
“I’m convinced it’s a slippery slope.”
Sen. Bob Corker (R-Tenn.) warned last week on the Senate floor that growing pressure from the right and the left will make it difficult to withstand calls to eliminate the legislative filibuster.
“If we continue on the path we’re on right now, the very next time there’s a legislative proposal that one side of the aisle feels is so important they cannot let their base down, the pressure builds, then we’re going to vote the nuclear option on the legislative piece,” he said.
“That’s what will happen. Somebody will do it.”
Had Democrats chosen to obstruct the next nominee, that might have been enough to keep McConnell from dropping the big one this week. As it is, the knee-jerk obstructionism on such a well-qualified nominee as Gorsuch is what’s driving the pessimism of these reactions, and how McConnell will eventually sell this to his own caucus. The judicial filibuster is dead already, though; Harry Reid killed it in 2013. If Republicans don’t kill it now, Democrats will do so as soon as the political situation gets reversed, and everyone knows it. Why not pull the trigger now with Gorsuch?
As for the legislative filibuster, it’s too valuable to eliminate, but perhaps there’s a better way to preserve it than through hand-wringing. If Senators really want to keep it, they need to stop abusing it for every issue that comes there way, and the best cure for that is to end the two-track rule adopted in the early 1970s, and to get rid of the procedural filibusters. Either get up and keep talking to block all Senate business, or go home.