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A 'Nuclear' Senate Showdown Next Week Appears All But Inevitable

Judge Neil Gorsuch is sworn in on the first day of his Supreme Court confirmation hearing before the Senate Judiciary Committee on Capitol Hill on March 20, 2017.
Justin Sullivan
Getty Images
Judge Neil Gorsuch is sworn in on the first day of his Supreme Court confirmation hearing before the Senate Judiciary Committee on Capitol Hill on March 20, 2017.

Lawmakers from both parties are increasingly convinced that the United States Senate is on a collision course that will permanently change the dynamics of the chamber — and the United States Supreme Court.

There's a growing bipartisan sadness and resignation about next week's showdown over the rules that govern high court nominations. But that doesn't mean there's any serious attempt from either party to avoid it.

Here's where things stand: after the Senate Judiciary Committee approves Neil Gorsuch's nomination Monday, as it's expected to, Senate Democrats will insist on a cloture vote.

"He will have to earn 60 votes for his nomination," Minority Leader Charles Schumer, of New York, said on the Senate floor last week. "My vote will be no, and I urge my colleagues to do the same."

That means Gorsuch would need support from at least 8 Democrats to advance to a final vote. And it's increasingly clear that's not going to happen.

But if Senate Democrats are determined to oppose Gorsuch, Senate Republicans are just as determined to confirm him. "We are optimistic that they will not be successful in keeping this good man from joining the Supreme Court very soon," Majority Leader Mitch McConnell, of Kentucky, said Tuesday, essentially guaranteeing Gorsuch will be confirmed next week.

How would that happen? Republicans would vote, with a simple majority, to change the Senate's rules, so that Supreme Court nominees aren't subject to a 60-vote filibuster.

A procedural and technical change, for sure. But one that could lead to profound, long-term changes.

"Understand what's getting ready to happen," Sen. Bob Corker, a Tennessee Republican, told reporters Tuesday. "We move through this process. The Democrats filibuster. The Republicans invoke the nuclear option. That means that every president who comes down the pike in the future knows that if their side's in the majority, they have no reason to appoint a Boy Scout like Gorsuch. On the Republican side, it would be hard to find a better candidate, OK?"

"So the next president coming in really doesn't have to worry about that," reasoned Corker. "They can nominate somebody — an extreme person --because they know that after what's getting ready to take place over the next 10 days, in all likelihood, they will no longer be bound by having to put someone forth that would at least meet some type of minimal criteria."

Corker said the impending rules change is the latest signpost of a "spiral downward," where each party holds grudges from when the other was in power. "Since I've been here over the last decade, it's been a spiral to the bottom," he said.

"I think this is tragic," Democratic Sen. Chris Coons of Delaware told MSNBC's Morning Joe. "And in talking to friends on both sides of the aisle — we've got a lot of senators concerned about where we're headed."

"There's Republicans still very mad at us over the 2013 change to the filibuster rule. We're mad at them about shutting down the government. They're mad at us about Gorsuch. And we're not headed in a good direction. I'm very concerned about where we're headed," he said.

That 2013 change is a key plot point here. Democrats controlled the Senate then, and they made this same change — eliminating the 60-vote threshold for lower court nominations.

Another, more recent development: McConnell's decision last year to block President Obama's nomination of Judge Merrick Garland to the high court.

Schumer pointed out in his floor speech that Gorsuch repeatedly said during his hearings there are no Republican judges or Democratic judges. "But if that were true we wouldn't be here, would we?" asked Schumer. "If that were true, if the Senate were merely evaluating a nominee based on his or her qualifications, Merrick Garland would be seated on the Supreme Court right now."

Democratic base voters and activist groups view the spot as a "stolen seat," and have genuine concerns about Gorsuch's judicial record. They're urging Democrats to do everything they can to block Gorsuch from joining the Supreme Court, where he could remain for decades to come.

"Anybody who votes for Gorsuch is creating a big problem for themselves on their left flank, as well as doing a generation of damage to the nation," warned Dan Cantor, the national director for the Working Families Party.

That's why Corker sees a rule change as inevitable. "If the Democrats know that Mitch is ready to vote the nuclear option, they have no desire to not filibuster, right? They know he's going to be confirmed either way," he reasoned.

"Why would they sully themselves with their base to vote not to filibuster?"

The Senate has been on this sort of brink before — and often, groups of lawmakers from both parties would come together at the last minute and hash out some sort of agreement.

Sen. John McCain of Arizona usually played a role in those deals. This time, the Republican said the air is "much more poisoned," and he doesn't see it happening.

Eliminating the 60-vote threshold for Supreme Court nominations "would fundamentally change the character of the United States Senate," said Sen. Debbie Stabenow, a Michigan Democrat. "And that would be deeply concerning."

And yet, both Stabenow and McCain are supporting their respective party's strategies here.

"We all know how this movie ends, OK?" said Corker. "And the big concern I have is there be an acknowledgment — if we don't respect the institution, who's going to?"

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Scott Detrow is a White House correspondent for NPR and co-hosts the NPR Politics Podcast.