Both the future of Senate rules and the confirmation of Judge Neil Gorsuch to the Supreme Court hung in balance Tuesday as Senate Republican leadership tried to assemble the necessary votes for the “constitutional option.”
At least fifty of the Senate’s fifty-two Republicans will have to sign on to allow simple majority votes on cloture for Supreme Court nominees if Judge Neil Gorsuch is to be confirmed on Friday.
Senate Democrats have assembled at least forty-two senators who have pledged to filibuster any effort to bring Gorsuch to a vote of the full Senate, one more than is needed to prevent a vote under current Senate rules. The Democratic filibuster was put over the top during Monday’s Senate Judiciary Committee hearing, at which Gorsuch was approved in a party-line 11-9 vote, making the constitutional option the only likely path to confirmation.
Senate rule changes can be accomplished by a simple majority. Because Vice-President Mike Pence holds the tie-breaking vote as President of the Senate, the constitutional option could be invoked if two or fewer Republican senators refuse to join the effort.
Several Republicans who had previously expressed their uncertainty or misgivings on the idea have confirmed they will back the constitutional option. Sen. Bill Cassidy (R-LA), who, in the weeks before the cloture-proof filibuster took shape, was unwilling to commit to changing Senate rules, came out forcefully in favor of the constitutional option Monday night, telling CNN’s Wolf Blitzer he “absolutely” would support what Blitzer called the “nuclear option.”
Sen. Lamar Alexander (R-TN), who, due to his dealing with Harry Reid’s Democratic majority during the Obama Administration to preserve the filibuster, was seen as a possible holdout, gave his strongest indication yet that he is prepared to do whatever is necessary to bring Gorsuch to a vote. Tuesday afternoon he told Breitbart News:
The Democrats have once again gone into a room and convinced themselves to do something that’s never been done before in the 230 year history of the Senate and that is to require more than 51 votes to confirm a Supreme Court nominee. I have spoken on the Senate floor twice in recent weeks to try to convince Democrats not to filibuster Judge Gorsuch’s nomination because it will be damaging to the Senate and to the country. When I was in the minority, I opposed President Obama’s Supreme Court nominee Elena Kagan, but I did not support a filibuster of her nomination—I believed she was entitled to a majority vote—and Judge Gorsuch is also entitled to a majority vote.
A remaining member of the “Gang of 14” senators who reached an agreement to save the sixty-vote cloture rule in 2005, Sen. Susan Collins (R-ME), told reporters Tuesday morning she was not committed to a repeat of that deal. “If it’s necessary in order to get him confirmed I may have to vote that way, but I certainly don’t want to,” she said about voting for the constitutional option.
Fellow Gang of 14 member Sen. John McCain (R-AZ) has been perhaps the most negative on the constitutional option, telling CNN that it would be a “dark day in this history of the United States’ Senate.” Even he, however, appeared resigned to the constitutional option’s likelihood. “It’s going to happen,” he said. “And it’s interesting that Republicans were dead set against it when my former colleague Harry Reid invoked it with the judges, but now it seems to be okay.”
The offices of Sen. Lisa Murkowski (R-AK) and Sen. Bob Corker (R-TN), two Republicans who have been reluctant to endorse the constitutional option, did not respond to Breitbart News’s requests for comment.