Senate Minority Leader Chuck Schumer’s vow to lead a filibuster of Judge Neil Gorsuch’s nomination to the Supreme Court raises the prospect of a dramatic rules-change that would permanently alter the Supreme Court confirmation process.
Senate rules require 60 votes to close floor debate on a nomination or piece of legislation. As such, a group of 41 senators can prevent the chamber from closing debate on a particular matter and permanently stall action on that subject — the infamous filibuster. Should Schumer succeed in marshaling 41 votes in the Senate Democratic caucus for a filibuster, action on Judge Gorsuch’s nomination could be permanently delayed.
Republicans could circumvent this procedural roadblock by simply changing the rules, and requiring only 51 votes to close debate on a judicial nomination — the so-called “nuclear option.” Former Senate Majority Leader Harry Reid took this step in 2013, when he led Democrats in abolishing the filibuster for lower court nominees.
The question now is whether there are 51 votes in the Senate Republican caucus to support the nuclear option. While most Republicans seem prepared to back the measure, a handful of consensus-oriented veterans may be recalcitrant to change the rules and further escalate the judicial confirmation wars.
The most likely candidates in this regard are GOP Sens. Susan Collins, John McCain, and Lindsay Graham. All three were members of the “Gang of 14,” a bipartisan group of senators that reached an accord on confirmed Bush-era nominees without invoking the nuclear option in 2005. Other Republicans with something of a moderate streak, like Sens. Lisa Murkowski and Jeff Flake, might also oppose such a dramatic change.
Collins is the only Republican senator to express misgivings about the nuclear option thus far.
“Senator 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.
McCain, Graham, and Flake all seem prepared to back a rules change, though they may be amenable to striking a deal with Democrats as occurred in 2005, wherein Gorsuch would be confirmed and the filibuster would be preserved for future nominations. Following Schumer’s announcement, all three senators have said they are prepared to take whatever steps necessary to confirm Gorsuch, even if it requires the nuclear option, but have also expressed a preference for preserving the rules as they are.
Sen. Murkowski’s office has not yet responded to requests for comment.
Much of this question will also turn on how aggressively Schumer whips his own caucus. Red-state Democrats standing for reelection next year may be unwilling to back Schumer’s play. Republicans would need to find eight such Democrats in order to break a filibuster.
Though Democrats could afford a handful of defections, Schumer is making the bet of his political life. In forcing the GOP’s hand, he is assuming there will not be more vacancies on the Court in the near future, that Democrats will soon regain control of the Senate, and that Donald Trump will be a one-term president. As such, it’s safe to assume he would work aggressively to keep his caucus in line.
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