Judge Gorsuch's confirmation vote, expected to be held in the Senate later this week, could have far-reaching legislative consequences well beyond the make up of the Supreme Court. With Democrats vowing to "fight tooth and nail," as Chuck Schumer would say, to filibuster Gorsuch, Republicans are likely to pursue the "nuclear option" to secure his nomination, a move that would eliminate the 60-vote threshold for Supreme Court nominees.
But several senators are warning that bypassing the Senate's filibuster rules for Gorsuch's vote, a move that Democrats utilized multiple times as well, is a slippery slope that would inevitably lead to calls to eliminate the filibuster for legislation as well so that bills could pass with a simple majority. Such a change would remove the last vestige of the Senate’s long tradition of protecting minority views, turning it into a smaller version of the House and fundamentally transforming the way laws are made. Per The Hill:
“The thing I worry most about is that we become we like the House of Representatives. What’s the next step? Legislation?” said Sen. John McCain (R-Ariz.).
“I’m convinced it’s a slippery slope.”
Sen. Bob Corker (R-Tenn.) warned last week on the Senate floor that growing pressure from the right and the left will make it difficult to withstand calls to eliminate the legislative filibuster.
“If we continue on the path we’re on right now, the very next time there’s a legislative proposal that one side of the aisle feels is so important they cannot let their base down, the pressure builds, then we’re going to vote the nuclear option on the legislative piece,” he said.
“That’s what will happen. Somebody will do it.”
Of course, the likelihood of Gorsuch being confirmed absent the "nuclear option" are looking fairly slim with Senators McCaskill (D-MO) and Tester (D-Mont.) both confirming they'll oppose his nomination.
Republicans need 60 votes to overcome the filibuster backed by Senate Democratic Leader Charles Schumer (N.Y.), who on Sunday said it is “highly, highly unlikely” that Republicans will get there.
Sen. Claire McCaskill (D-Mo.) on Friday and Sen. Jon Tester (D-Mont.) on Sunday said they would oppose Gorsuch and back a filibuster. The decisions by the two senators, who both face reelection next year in states won by Trump, seem to back Schumer's words up.
Republicans need to find another six votes to invoke cloture, and they have few options left.
Sen. Patrick Leahy (D-Vt.), a former chairman of the Judiciary Committee, has sent mixed signals over whether he’d back the filibuster.
Sen. Michael Bennet (D-Colo.), who represents Gorsuch’s home state, is an unknown, as are Sen. Chris Coons (D-Del.), Mark Warner (D-Va.) and Angus King (I-Maine).
And while a couple of Democrats from key swing states have said they'll support Gorsuch, their support is not enough to get Republicans the 60 votes they need.
Sen. Joe Manchin (D-W.Va.), one of only three Democrats who have explicitly said they’d oppose a filibuster of Gorsuch, warns the Senate is in danger of becoming a smaller version of the House, where the minority party has few rights.
“People who have been here for a long time know that we’re going down the wrong path here. The most unique political body in the world, the United States Senate, will be no more than a six-year term in the House,” he said.
“I’m doing whatever I can to preserve he 60-vote rule,” he said.
Sen. Heidi Heitkamp (D-N.D.), who like Manchin says she will vote to allow Gorsuch’s nomination to move forward, said she is also concerned about the legislative filibuster.
“This erosion that seems to be happening, of course I’m worried about it,” she said.
Gorsuch picked up a third Democratic vote on Sunday when Sen. Joe Donnelly (Ind.) said he would back him.
But, not everyone is opposed to "going nuclear". Former Representative Matt Salmon (R-Ariz.) said the filibuster was created to protect the minority party “in extreme circumstances” but has morphed into a partisan tool that simply creates deadlock in Washington D.C. “It’s become so common place to block just about everything including even appropriation bills so that the Congress can’t get its work done. The filibuster as it’s currently used has really worn out its welcome,” he said in an interview.
Meanwhile, Wisconsin Governor Scott Walker (R) has also called on Republicans to ditch the filibuster saying “my biggest concern is that they not allow some of these arcane rules that have nothing to do with the Constitution."
Harry Reid was also a big fan of eliminating the filibuster, saying “You can’t have a democracy decided by 60 out of 100, and that’s why changing the rules is one of the best things that has happened to America in a long time."
Of course, as the saying goes, "what's good for the goose is good for the gander"...so Republicans may be best served to remember they won't hold control of the Senate forever.