Republicans currently need eight Democratic Senators to join them to secure the support necessary to avoid a filibuster of the Gorsuch pick. If Republicans don’t come up with the votes to avoid the filibuster, Senate Majority Leader Mitch McConnell, R-Ky., would have to consider using the “nuclear option” to change the Senate rules to allow Gorsuch to be confirmed by a simple majority.
The Heritage Foundation’s John Malcolm told reporters Tuesday he expects Gorsuch would be seated on the Supreme Court before it decides whether to tackle a case involving the merits of the ban—aside from anything the high court might do regarding the temporary restraining order.
The timing of the 9th Circuit’s proceedings could move the scene of the battle over the ban from large protests at airports nationwide to the floor of the Senate, where hearings on Gorsuch’s nomination will happen.
“I would assume in confirmation hearings since [Gorsuch] might very well be on the Supreme Court and this issue might very well come before him, he would find a very deft way of ducking that issue about how he would rule in that case while giving a broader perspective,” Malcolm said of how Gorsuch would likely choose to handle questions about the ban.
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