Two entirely predictable developments on Monday in the battle over the nomination of Judge Neil Gorsuch to the Supreme Court will now leave the ball in the Republicans’ court.
The Senate Judiciary Committee did as expected, passing the nomination on to the full Senate by a vote of 11-9 – along strict party lines. But that came after another unsurprising announcement – that Democrats have now officially accumulated enough votes in opposition to President Trump’s nominee to successfully block his nomination.
So now it rests in the hands of GOP leadership in general, and Senate Majority leader Mitch McConnell in particular, to decide if the last vestige of bipartisanship in the upper chamber will vanish. McConnell, a veteran lawmaker who well appreciates senate protocol and tradition, is loathe to deploy the so-called “nuclear option” in order to reduce the vote to a simple 51 vote majority instead of 60 votes, But he has indicated on multiple occasions that he will do whatever is necessary to ensure Gorsuch is confirmed.
And McConnell has Harry Reid to thank for making his decision relatively easy. For when Reid, serving as Senate Majority leader at the time, went nuclear on all federal judges except the Supreme Court in 2013, he opened the door through which McConnell can now walk.
So the virtually pre-scripted storyline continues to play out on the public stage, one step short of the final act: Donald Trump, as promised, nominates the closest thing to Antonin Scalia. Gorsuch, true to recent tradition, says nothing noteworthy during his hearings before the Judicial Committee. Democrats predictably complain throughout the hearings that the problem with Gorsuch is that he is not Merrick Garland. Republicans do the expected and approve Gorsuch in Committee. Democrats do what they planned to do no matter what Gorsuch said during the hearings, lining up enough votes to stop him in the full senate and forcing McConnell to go nuclear or lose the nomination.
Both sides assume genuine risk as this story nears its conclusion.. For Republicans, the upside of the nuclear strategy is, in addition to getting Gorsuch on to the highest court in the land, they will be able to confirm virtually anyone nominated from here on in by this president – assuming they maintain their majority.
For the Democrats, the risk in threatening a fillibuster and forcing the GOP into the nuclear option is that they will lose any leverage they have going forward – unless they gain a majority in 2018, in which case they will be able to block any Trump nominee. And given their hatred of Donald Trump, Democrats will vote down anyone Trump puts up for the court.
Democrats will have to defend many more seats than Republicans in the 2018 senate elections, giving the GOP a clear opportunity to maintain their majority, but remember that the Republicans had to defend many more seats than Democrats in 2016, and yet they hung on to control of the senate.
At one time, it was thought that several senate Democrats running for reelection next year in states carried by Trump would vote in favor of Gorsuch, but as of now, just two – Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota – have announced their support, well short of the eight Democrats needed to push Gorsuch across the 60-vote threshold.
And so the final act in the SCOTUS drama approaches later in the week, and unless Democrats reverse themselves or Republicans somehow eschew the nuclear option – the final act will soon be on display, the script will be brought to completion, and Neil Gorsuch will become the newest Associate Justice of Supreme Court of the United States.