WASHINGTON — Whether it’s Neil Gorsuch or another candidate, nearly any Supreme Court nomination by President Donald Trump would probably upset Democrats.
But with the mood in Washington and the nation growing increasingly toxic, the coming confirmation fight over Gorsuch raises the political temperature. Trump’s temperament is not given to telling everyone to calm down, and he turned up the heat Wednesday by saying that if Senate Majority Leader Mitch McConnell must go “nuclear” to get Gorsuch seated, so be it.
“If we end up with that gridlock I would say, ‘If you can, Mitch, go nuclear,'” Trump said to a reporter’s question at the White House. “Because that would be an absolute shame if a man of this quality was put up to that neglect. I would say it’s up to Mitch, but I would say, ‘Go for it.'”
Trump tells McConnell ‘go nuclear’ if blocked… https://t.co/AmSMeEIdmK
— DRUDGE REPORT (@DRUDGE_REPORT) February 1, 2017
“Nuclear” means we’ve gone over the brink. It means that when the minority party has huffed and puffed, the other party calls its bluff. And it specifically means true majority rule, with none of today’s niceties.
What niceties, you ask?
Good point. But this nevertheless scares people who believe that years of civility and compromise, give or take exceptions, have served the nation well.
Here’s how and why things would turn testy.
What’s with the Democrats’ sour mood?
Trump, a Republican, won the November election. As president he uses Twitter to insult those with whom he disagrees, including Democratic congressional leaders. He plans to dismantle the Affordable Care Act and the Dodd-Frank financial regulations. He wants to roll back environmental regulations and started already by green-lighting the long-stalled Keystone XL pipeline.
Trump’s Cabinet picks are expected to boost the role of charter schools and vouchers, which typically come at the expense of public school funding. And in his short time in office so far, Trump has used his executive authority to impose a temporary ban on people from seven predominantly Muslim countries — which supporters see as a safeguard against terrorism while critics call it an affront to America’s most basic values.
What’s the court nomination go to do with that?
All of this has set a tone for Democrats, who worry that the next Supreme Court justice could be called upon to affirm Trump policies. But that’s only part of it. Last year Senate Republicans let the seat Gorsuch would occupy — last held by the late Antonin Scalia — sit vacant for 10 months. McConnell, the Senate majority leader, announced early in that nominating process that the selection should be left to the president after Barack Obama.
We know that Justice Scalia’s seat on the court does not belong to any President or any Political Party. It belongs to the American people.
— Leader McConnell (@SenateMajLdr) February 1, 2017
Obama’s nominee, Merrick Garland, never got Senate consideration — and it was not because of his specific positions or opinions, although in hearings it might have come to that.
What does that have to do with Gorsuch?
Democrats hold two specific objections:
Now consider the issues Democrats are fighting for. They include putting restrictions on corporate money in politics, maintaining government policies that spell out employer responsibilities to workers, and easing access to the courts for people who want to file lawsuits. Gorsuch’s opinions make Democrats worry he would be at odds with their agenda.
Sen. Sherrod Brown, an Ohio Democrat, gave his opinion swiftly when Gorsuch was announced: Gorsuch’s rulings as a federal appeals judge are simply antithetical to Brown’s beliefs.
Sherrod Brown finds Gorsuch objectionable
What can Democrats do?
The 100-member Senate is governed by certain rules, and the one that matters here says that unless 60 senators vote to cut off debate, there cannot be a final vote to confirm a Supreme Court nominee. Republicans have only 52 Senate seats.
This 60-vote threshold has changed over the years for other kinds of confirmation votes. In fact, Democrats put it at a simple majority — 51 votes — in 2013 when they held power and grew frustrated with Republicans blocking confirmations. But both parties have been reluctant to change the 60-member threshold for the high court.
This means once Gorsuch’s confirmation gets to the Senate floor after likely Judiciary Committee approval, Democrats could just filibuster until — or unless — Republicans got some Democrats to cross the aisle to get to 60.
What could Republicans do if they couldn’t get 60?
Republicans could change the rules. They could make it possible to move forward and cut off the filibuster with a simple majority, or 51.
This is what people mean when they talk about “going nuclear.”
Why is it called “nuclear?”
Like nuclear war, the devastation could be widespread. The nuclear option could wipe out semblances of civility, with the majority party steamrolling over the minority — not only on Supreme Court nominees but, if Republicans chose, on other legislation that Trump wants passed.
This could give Trump and the GOP “unfettered power,” said Doron Kalir, an attorney and professor at Cleveland State University’s Cleveland-Marshall College of Law.
Why wouldn’t Republicans want that kind of power?
It could be tempting to have it at first. But “every four years or eight years, the wheels may turn,” Kalir said. So let’s say Democrats win back a Senate majority in four or eight years and a different president is in office.
Let’s say there are additional Supreme Court vacancies then, and plenty of policies Democrats want to enact without any Republican obstruction. Payback could be unpleasant to those on the receiving end.
There are ways to avoid this whole scenario, though. One, suggested by analysts at the Heritage Foundation, a conservative think tank, would limit how often any single senator could dominate the floor to filibuster. If this rarely used rule were invoked, Democrats could run out of time and senators eventually.
The other way is for both parties to compromise. That will be up to McConnell and Senate Democratic Leader Charles Schumer. Neither seems to cherish the thought of nuclear war, although it’s too early to predict an outcome. Gorsuch was just nominated Tuesday night, after all.
But Trump is not one to mince words. Some people may be scared of going nuclear. Trump is not.
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