The showdown over Gorsuch requires two sets of whip counts. One: How many Democrats are willing to vote yes with the GOP on cloture? McConnell needs eight; so far he’s got two, and may have a third in Pat Leahy. There are still enough undecideds out there to get to 60, but the number is dwindling. The other whip count: How many Republicans are willing to nuke the filibuster if it comes to that? Not a single member of the caucus has flatly said they’d refuse that route in order to get Gorsuch confirmed, but the potential for squishiness among Republican centrists is ever present. Until they’re on record as being willing to nuke, there’s some doubt.
Hatch is one of the Republicans I’ve been worried about. When asked in November how he felt about doing away with the filibuster, he answered, “Are you kidding? I’m one of the biggest advocates for the filibuster. It’s the only way to protect the minority, and we’ve been in the minority a lot more than we’ve been in the majority. It’s just a great, great protection for the minority.” Either he was talking about the legislative filibuster there, though, or he’s had a well-timed change of heart to coincide with his election plans because, as of today, he sounds like he’s ready to push the button:
Another veteran Republican senator is ready to thwart an unprecedented filibuster of Supreme Court nominee Neil Gorsuch.
“We are going to confirm Judge Gorsuch. By whatever means necessary,” Senator Orrin Hatch of Utah told THE WEEKLY STANDARD on Tuesday. The 83-year-old Hatch has been serving in the Senate since 1977 and is widely recognized as an establishment Republican who has taken in an interest in defending the Senate as an institution.
Hatch is ready. So is Lindsey Graham, a veteran of the “Gang of 14” and a perennial candidate to go wobbly in partisan confrontations like this. How about McCain, another Gang of 14-er? I can’t find a transcript of what he said this morning but these two tweets from a Fox News reporter are a bit, er, concerning:
McCain on confirming Gorsuch: I think it will be difficult..I don't know that he has the votes right now.
— Chad Pergram (@ChadPergram) March 28, 2017
McCain on changing Senate precedent to confirm Gorsuch: I'm concerned about nuclear option.
— Chad Pergram (@ChadPergram) March 28, 2017
Yeah, yeah, he’s “concerned” that Senate institutions are fraying under partisan pressure, but is he so concerned that he’d refuse to go nuclear if it came to that? Probably not: It was less than a week ago that McCain said of the nuclear option, “I think we’ll address it when it happens. None of us want to do it, but we’re going to confirm Gorsuch.” His point today sounds like it’s less of the “I can’t bring myself to do this” variety and more of the “please don’t make me do this, Democrats” sort. If you’re worried, though, that he’s going to try to broker another Gang of 14 type deal to try to wriggle out of the dilemma, don’t — apparently, he’s done with compromises like that over judges.
Here’s a comment that’s truly worrisome, though:
“Senator [Susan] Collins is not a proponent of changing the rules of the Senate,” a Collins representative told The Daily Caller News Foundation. “She hopes that common sense will prevail and that we will have a normal process for considering Judge Gorsuch’s nomination.”
Though the statement does not flat out exclude the possibility Collins would support a rules-change, it encapsulates where several moderate Republicans senators find themselves — dubious of a rules change but unwilling to abandon a Supreme Court nominee they strongly support.
If anyone’s apt to break with the rest of the caucus for a more moderate position, it’s Collins. She really might blink on a nuclear vote if it comes to that. But (a) she’ll be under tremendous pressure from the base not to do so, (b) given that even Lisa Murkowski has had kind things to say about Gorsuch, Collins may be the only vote against ending the filibuster, (c) the statement from Collins’s office, taken at face value, really only says what McCain said last week, that the GOP doesn’t want to go nuclear without saying whether it will, and (d) Collins gave a floor speech in the Senate just this morning supporting Gorsuch. (Watch below.) A key quote: “The Senate should resist the temptation to filibuster a Supreme Court nominee who is unquestionably qualified.” Hmmmm.
I’m not worried. If there were any dirt at all on Gorsuch, you might get a handful of Republicans refusing to go nuclear on his behalf, on the theory that Trump could and would nominate a more acceptable nominee in his place. But there’s no dirt, and so a successful filibuster would mean that not only can’t Gorsuch be confirmed, neither can anyone who replaces him. Republicans won’t go nuclear for him personally, they’ll go nuclear because they’re not going to stand around and leave that SCOTUS seat vacant for four years. Especially when they’ve got political cover from respected liberals to put Gorsuch on the bench. They’ll push the button. Exit question: Which rhetorical strategy is more effective for Republicans while red-state Dems like Jon Tester are weighing what to do? Should they loudly promise to nuke the filibuster if Democrats mount one? Because that might encourage Tester to go along with his party, knowing that his no vote on cloture might not much matter. Or should they project some uncertainty, a la Collins? Because that might inadvertently encourage Tester to go along with his party, suspecting that maybe Democrats really can block Gorsuch.