Senate Republicans Force Historic Rule Change to Advance Gorsuch

(Bloomberg) -- Senate Republicans ignited the "nuclear option" to allow confirmation of President Donald Trump's U.S. Supreme Court nominee and bar Democrats from blocking future picks, a dramatic rule change that could deepen partisan divisions and put more ideologically extreme justices on the court.

The 52-48 party-line vote called for by Majority Leader Mitch McConnell Thursday will let the Senate confirm Neil Gorsuch on Friday to take a court seat that Republicans refused to let President Barack Obama fill during his last year in office.

The rule change means Gorsuch and all future Supreme Court nominees can be confirmed with a simple majority vote and will no longer face a 60-vote hurdle.

McConnell said Democrats' move to filibuster Gorsuch is part of a “much larger story” in which the left is trying to politicize the courts and confirmations.

“It's a fight they have waged for decades with a singular aim, securing raw power no matter the cost to the country or the institution,” McConnell of Kentucky said on the Senate floor. “It underlies why this threatened filibuster cannot be allowed to succeed."

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Democrats said the power grab was made by the Republicans when they denied a hearing to Obama's nominee last year. In addition, Gorsuch didn't show himself to be a mainstream judge during his confirmation hearing at the Senate Judiciary Committee, Minority Leader Chuck Schumer said.

"Far from being the kind of mainstream candidate for the Supreme Court that could earn 60 votes, he may very well turn out to be one of the most conservative justices on the bench," said Schumer of New York.

"The nuclear option means the end of a long history of consensus" on high court nominees, he said. The 60-vote requirement acted as a "guardrail" against judicial extremism, Schumer said.

Unanimous Support

Gorsuch, 49, has a decade of federal appeals court experience and unanimous support among Senate Republicans who say his qualifications will make him a strong addition to the court for decades to come.

Democratic critics say putting him on the court will produce more decisions favoring corporations over working-class Americans. Many remain embittered about the GOP's refusal last year to consider Obama's choice of Judge Merrick Garland for the vacancy created by the February 2016 death of Justice Antonin Scalia.

“The dark deed is done,” Senator Jeff Merkley, an Oregon Democrat, wrote on Twitter. "McConnell has just put a knife into the heart of our We the People republic."

Republicans insisted they were forced to make the change because Democrats were ignoring a tradition against using a filibuster to block high court nominees. McConnell and other Republicans noted that both justices confirmed under Obama, Sonia Sotomayor and Elena Kagan, had bipartisan support and went straight to a final vote.

“We're talking about a really high-quality person to be a justice on the Supreme Court who was being mistreated by misuse of the rules as far as I was concerned,” Senator Orrin Hatch, a Utah Republican, said after the rule change.

Forty-four Democrats initially voted Thursday to block Gorsuch's nomination by denying the 60 votes needed to move it forward. Four Democrats voted with the GOP to advance the nomination -- Michael Bennet of Colorado, Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia and Joe Donnelly of Indiana.

Simple Majority

Republicans responded with the “nuclear option” that allows Senate rules to be revised with a simple majority vote, rather than the 67 typically required. McConnell did this by asserting to the presiding officer that only a majority should be needed to confirm Supreme Court nominees.

Republicans then voted to overturn the 60-vote requirement for Supreme Court nominees. The Senate followed with a 55-45 procedural vote to set up Friday's final confirmation.

Republican Senator John McCain had tried to forge a bipartisan deal to avert the rule change but gave up early this week after Democrats said they had enough votes to block Gorsuch.

“I fear today's action will irreparably damage the uniqueness of the Senate, and along with it, any hope of restoring meaningful bipartisanship,” McCain said in a statement after the votes Thursday. “The Democrats' unprecedented, partisan filibuster of the nomination of Judge Gorsuch unfortunately left me with no other choice than to vote to change the rules.”

In 2013, a Democratic-led Senate under Majority Leader Harry Reid voted to end filibusters of executive-branch and lower-court nominees following Republican obstruction of Obama's choices. That eased approval of Trump's cabinet this year, with key posts including the secretaries of Treasury, Education, Health and Human Services and the attorney general winning confirmation with 53 or fewer votes.

Filibusters on Legislation

Some lawmakers have said they fear Republicans will later change the rules to eliminate minority-party filibusters of legislation -- a longstanding rule intended to force Republicans and Democrats to compromise -- although McConnell said this week he won't do that.

"At this point there is not a majority for ending the legislative filibuster," Republican Senator Ted Cruz of Texas told reporters moments after the rules change. "If they continue an immovable blockade I suspect the votes will shift on that question."

Even Republicans who back the new rule warn that easing hurdles for Supreme Court nominees will cause the court and Congress to become more partisan. McCain and Senator Lindsey Graham of South Carolina say presidents could choose nominees with more extreme views because they wouldn't need bipartisan support for confirmation.

“Now that we are entering into an era where a simple majority decides all judicial nominations, we will see more and more nominees from the extremes of both the left and the right,” McCain said on the Senate floor Wednesday. “I do not see how that will ensure a fair and impartial judiciary. In fact, I think the opposite will be true and Americans will no longer be confident of equal protection under the law.”

Retaliation Possible

It remains to be seen whether Democrats will retaliate for the rule change by slowing down work in the full Senate or in committees.

“We'll have to look at all our options,” said Senator Chris Van Hollen, a Maryland Democrat. “When they're blowing up rules, we've got to figure out how we best use the rules that remain.” Republicans' move will make it harder for Trump's agenda to get bipartisan support, the senator said.

“They're throwing a monkey wrench in the gears of bipartisanship and it's going to make a tough situation even worse,” he said.

--With assistance from Sahil Kapur

To contact the reporter on this story: Laura Litvan in Washington at llitvan@bloomberg.net.

To contact the editors responsible for this story: Kevin Whitelaw at kwhitelaw@bloomberg.net, Laurie Asseo