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The battle over the vacant Supreme Court seat took a turn on Thursday when Senate Minority Leader Chuck Schumer gave the green light for Democrats to filibuster the vote to confirm Judge Neil Gorsuch – signaling the fight could now go “nuclear.”
In comments from the Senate floor, Schumer said he could not support Judge Neil Gorsuch’s nomination to the Supreme Court and that the judge “will have to earn 60 votes for confirmation.”
“My vote will be ‘no,’ and I urge my colleagues to do the same,” Schumer said. “To my Republican friends who think that if Judge Gorsuch fails to reach 60 votes we ought to change the rules, I say: If this nominee cannot earn 60 votes, a bar met by each of President Obama’s nominees and President [George W.] Bush’s last two nominees, the answer isn’t to change the rules – it’s to change the nominee.”
Republicans were hoping to be able to confirm Gorsuch with a simple majority, as they hold 52 seats in the Senate. But with Schumer essentially assuring the GOP that his party would filibuster, which requires 60 votes to break, that now seems to be a pipe dream.
But Senate Majority Leader Mitch McConnell has at his disposal the “nuclear” option – rewriting the Senate rules by simple majority to kill the option to filibuster a Supreme Court nominee. Democrats have employed that tactic elsewhere, as former Senate Majority Leader Harry Reid used it to assist in the confirmations of President Barack Obama’s judicial and executive nominees.
McConnell, however, told Politico in January that the “practice was that you didn’t do it even though the tool is in the toolbox.”
“There are a lot of tools in there,” he said. “Until Bush 43, the filibuster tool was always there. But it wasn’t done.”
Meanwhile, President Donald Trump has said that McConnell should go “nuclear” if he has to.
“If we end up with that gridlock, I would say, if you can, Mitch, go nuclear,” Trump told reporters in February. “Because that would be an absolute shame if a man of this quality was caught up in the web. … So I would say it’s up to Mitch, but I would say go for it.”
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On Wednesday, Politico reported that several Democratic senators were considering making a deal with Republicans to confirm Gorsuch. The extractions the Democrats wanted, according to Politico, included a promise not to kill the filibuster for future nominees.
But that seemed like a far-fetched idea, especially considering how many Democrats had already voiced stiff opposition to Gorsuch. Democrats view the opposition as an appropriate response to the thwarting of Obama’s choice to fill the vacant seat, Judge Merrick Garland, whose confirmation was obstructed by Republican senators last year.
Also on Thursday, Democratic Sen. Bob Casey of Pennsylvania, a state Trump won, said he would oppose Gorsuch and join the filibuster.
Justice Samuel Alito was the last justice forced to clear the 60-vote supermajority in the Senate and the only justice in the past 47 years to have faced such a hurdle, The Washington Post reported.