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Democrats appeared Sunday to have rallied enough support for a filibuster of JudgeNeil Gorsuch, forcing Republicans to prepare to trigger the “nuclear option” to install President Trump’s first nominee to the U.S. Supreme Court this week.
Sen. Claire McCaskill’s announcement Friday that she’ll join fellow Democrats’ filibuster was the latest signal that Republicans probably won’t be able to rally the 60 votes needed to overcome the blockade on JudgeGorsuch, a well-regarded jurist who’s been ensnared by anti-Trump politics.
Republicans said no matter what Democrats do, the outcome will be the same: JudgeGorsuch will be sitting on the court in a matter of days. All that remains is whether Democrats force — and Republicans follow through on — a major change to filibuster rules.
“I can tell you that Neil Gorsuch will be confirmed this week,” Senate Majority Leader Mitch McConnell said, countering Mr. Schumer on NBC. “How that happens really depends on our Democratic friends. How many of them are willing to oppose cloture, on a partisan basis, to kill a Supreme Court nominee? Never happened before in history, in the whole history of the country.”
Ms. McCaskill’s announcement was critical because she was the first Democratic senator to support a filibuster who is up for re-election next year in a state Mr. Trump won overwhelmingly.
Republicans had been counting on electoral pressure to sway her and the handful of others who are in a similar situation. Indeed, two others — Sens. Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota — announced late last week they will support JudgeGorsuch.
Now, without Ms. McCaskill, Republicans essentially will have to run the table of the remaining undecided senators.
Top remaining targets are Democratic Sens. Jon Tester of Montana and Joe Donnelly of Indiana, both of whom are up for re-election next year in states Mr. Trump easily won. Independent Sen. Angus King is also up for re-election in Maine, which split its electoral votes last year.
Another key target is Sen. Michael Bennet, a Democrat from Colorado, which is where JudgeGorsuch lives, and who is facing intense pressure to back the home-state hero.
But even if all four of those backed the judge, combined with Mr. Manchin and Ms. Heitkamp, that still accounts for just 58 of the 60 votes needed to overcome a filibuster.
That means the judge’s fate comes down to four other Democrats — all liberal stalwarts in heavily Democratic states — who have yet to announce their stance.
The lobbying of Democrats has intensified. In Montana, three key judges and a former judge wrote a letter to senators endorsing JudgeGorsuch for the Supreme Court, adding to the pressure on Mr. Tester to break with his party.
“JudgeGorsuch will provide valuable insight and perspective from the Western states on a Supreme Court that is dominated by Justices hailing from the Eastern seaboard,” the letter reads. “JudgeGorsuch admitted to preferring dry flies to wet flies during the lengthy confirmation hearings, and that’s an opinion all Montanans can respect.
The nuclear option involves an arcane procedural tactic that lets the Senate change the rules by majority vote. Since the filibuster is merely a Senate debating tactic, its power can be curtailed through a rules change.
Republicans first considered the tactic in 2005, when Democrats were filibustering President George W. Bush’s appeals court nominees, but ultimately backed off after a gang of renegade Democrats and Republicans cut a deal.
Democrats actually triggered the nuclear option four years ago, kneecapping the power of the filibuster for every other nominee except the Supreme Court.
Now, with the nuclear option looking increasingly likely, conservatives are trying to stiffen GOP senators’ spines against another last-minute deal like the renegades struck in 2005.
Some Democrats reportedly are attempting to strike an agreement in which they would agree not to filibuster JudgeGorsuch in exchange for a promise that they would be allowed to filibuster — and the GOP wouldn’t use the nuclear option — on a future Trump pick.
The conservative activists who have backed JudgeGorsuch say such a deal makes no sense for Republicans. If JudgeGorsuch, who has won exceptional reviews for his legal credentials, isn’t acceptable, the activists say, there’s nobody Mr. Trump could pick who would satisfy Mr. Schumer or the liberal groups itching for a fight.
“Chuck Schumer is engaged in a scorched-earth, first-ever partisan filibuster to try and block JudgeGorsuch. If necessary, the constitutional option should be used to preserve Senate tradition,” said Carrie Severino, chief counsel at the conservative Judicial Crisis Network, which has run millions of dollars of ads backing the Gorsuch pick.
Liberal activist groups aren’t keen on a deal either, insisting that Democrats do whatever they can to keep JudgeGorsuch off the bench.
Still, those fighting over JudgeGorsuch have their eye firmly on the next court fight. JudgeGorsuch would replace the late Justice Antonin Scalia, who was also a Republican appointment, so even if the judge were conservative, he wouldn’t alter the ideological balance of the court from where it was little more than a year ago.
But if one of the Democrat-appointed justices were to retire and Mr. Trump were to pick a successor, that could be a major change, tilting the court toward the right.