Yesterday Ed looked at the theory that John McCain still wanted to get some sort of new Gang of 14 deal going in order to assure Neil Gorsuch’s confirmation without having to invoke the nuclear option. The general consensus seems to be that this is an effort which is doomed to fail, though I’m not so sure about that. While it may not take the form of any sort of formal “gang” deal, a path forward may yet appear from an unexpected direction. Still, McCain seems rather glum about it as the days until the Senate vote slip away. As Bloomberg reported last night, the Arizona Senator is still hammering away in search of some sort of partnership across the aisle, but he doesn’t seem hopeful.
Senator John McCain said Thursday he is talking to Democrats in hopes of reaching a “long-term” deal to confirm Neil Gorsuch to the U.S. Supreme Court while saving the minority party’s ability to block future high court nominations.
“There’s always hope, because maybe we’ll recognize the damage that’s been done to the institution and the American people,” McCain said in an interview Thursday in Washington. “I’ll have conversations but I’m not optimistic.”
“I’d say odds are overwhelmingly against” getting a deal, McCain said.
There very likely won’t be an official “gang” or formalized deal, so McCain is probably right about that. But we can’t discount the possibility that there won’t actually be a need for a deal in the first place. This NBC report from yesterday has the unofficial Democratic (and independent Dem leaning) whip count and there are currently two Democrats saying they will vote for cloture and 32 saying they support a filibuster. That leaves 14 senators in the “undecided” column. The first question to ask is, what are they waiting for in terms of deciding? It’s not as if there are more hearings to come or opportunities to get answers to some hypothetical questions they might still have. The process has passed that stage. So are they really so enslaved to Chuck Schumer and the party agenda that they’re willing to blow up the process and force Mitch McConnell to trigger the nuclear option over an obviously well qualified candidate?
The fact is that the undecideds may still be keeping their heads down to avoid too many unpleasant headlines, but some of them would probably rather just toss Gorsuch a vote and be done with it. Why? Because even absent a “deal” on Gorsuch, it would still allow them the option of attempting a filibuster on a future nominee who was more objectionable. There’s also the chance that there will be no more openings during Trump’s first term, so the problem could be shelved until they have a shot at taking back the White House, or even the Senate majority (at least in their minds, anyway). The senators on the undecided list include figures such as Ben Cardin, Claire McCaskill, Joe Donnelly, Jon Tester, Michael Bennet and Angus King. I picked those six because they could easily fall into the mindset I described above. Those six votes alone could render the entire issue moot.
As for McCain’s aspirations here, I frankly hope that the era of such gang style deals is over. Why should the Senate GOP agree to any of this nonsense to begin with? Gorsuch has been examined through the normal process and deserves a vote in his own right just like any other nominee made by any president. Saying you’re willing to vote for him only if you get some sort of hostage negotiation assurances for future, hypothetical nominees basically means that your advise and consent role is conditional and up for sale. Such wheeling and dealing doesn’t exactly inspire confidence.
Nobody needs to go with their hat in their hands begging those final fourteen senators for a vote. They can follow their own consciences and either do what’s right or take responsibility for the nuclear option being invoked. Either way, Gorsuch winds up on the court and the process moves forward. This isn’t a constitutional crisis and we shouldn’t be treating it as if it were.