Senate Republicans are preparing to use the nuclear option to confirm Judge Neil Gorsuch to the Supreme Court in the face of calls for a filibuster by Democrats, despite President Obama once saying qualified jurists should be able to join the court despite policy differences.
Senate Minority Leader Charles Schumer has called on the Democratic caucus to deny Judge Neil Gorsuch an up-or-down vote in response to anger over the nomination from the far-left wing of the party.
“If this nominee cannot earn 60 votes — a bar met by each of President Obama’s nominees and George Bush’s last two nominees — the answer isn’t to change the rules. It’s to change the nominee,” he said on the Senate floor.
Former supporters and members of the Clinton campaign indicated the filibuster was revenge for Hillary Clinton’s defeat in the presidential election.
While it takes only a simple majority vote to confirm a Supreme Court nominee, it takes 60 votes to break a filibuster; Republicans currently hold 52 seats, while Democrats (and independents who caucus with the Democrats) hold 48 seats.
In response to the calls for a filibuster, Republicans have indicated their willingness to invoke and expand the nuclear option to push Judge Gorsuch’s nomination through the Senate.
The nuclear option, implemented by Senate Democrats under former Majority Leader Harry Reid in 2013 in response to efforts by Republicans to filibuster President Obama’s judicial nominees, lowered the threshold to break a filibuster of all Executive Branch appointees from 60 to 51 votes.
The Democrats currently expressing support for a filibuster ignore statements made by former President Obama at a press conference on February 16, 2016, when he said qualified jurists should be allowed to serve on the Supreme Court despite policy differences.
“I think that, historically, if you look at it, regardless of what votes particular senators have taken, there’s been a basic consensus, a basic understanding, that the Supreme Court is different,” he said. “And each caucus may decide who’s going to vote where and what but that basically you let the vote come up, and you make sure that a well-qualified candidate is able to join the bench, even if you don’t particularly agree with them.”
The following day, White House Press Secretary Josh Earnest noted President Obama’s regret for filibustering Alito, who was ultimately confirmed by the Senate on a 58-42 vote.
“As the president alluded to yesterday, he regrets the vote that he made, because, frankly, as we’ve discussed, Democrats should have been in the position where they were making a public case,” Earnest said. “That’s what Democrats should have done. And they shouldn’t have looked for a way to just throw sand in the gears of the process.”
There has never been a successful filibuster of a Supreme Court nominee. The Senate successfully filibustered President Lyndon Johnson’s nomination of Associate Judge Abe Fortas to serve as Chief Justice in 1968, but he was already a member of the court at the time.