Weighing the nuclear option

Democrats on Capitol Hill say they will do everything possible to stop the confirmation of President Donald Trump’s Supreme Court nominee, Judge Neil Gorsuch. But their bark might be worse than their bite because of a rule change they introduced during the Obama administration.

In November 2013, the Democratic majority in the Senate voted to end the use of filibusters for executive branch appointees and judicial nominees—except those to the Supreme Court. Until then, the Senate rules that protected the minority were considered somewhat sacred. For many decades, both sides threatened to change the rules and allow a 51-vote majority to break filibusters, but no one actually did it.

At that time, the Supreme Court didn’t have a vacancy. But if Democrats still had the majority in the Senate when Justice Antonin Scalia passed away, they could have used the nuclear option for the Supreme Court, as well.

In 2013, Sen. Mitch McConnell, R-Ky., noted Democrats were setting a precedent with implications for Supreme Court nominees. He said the Democrats effectively changed the rules for all judicial nominees.

“You’ll regret this, and you may regret this a lot sooner than you think,” he warned then.

McConnell’s warning might very well prove true. Today, Trump directed Republican senators to “go nuclear” if Democrats try to block Gorsuch’s nomination.

A Democratic filibuster seems likely, but it’s not a foregone conclusion. Three Democrats have already said they won’t join a filibuster: Chris Coons of Delaware, Joe Manchin of West Virginia, and Heidi Heitkamp of North Dakota. Ten Democratic senators are from states Donald Trump carried, and they are all up for reelection next year. In fact, more than half of all Senate Democrats are up for reelection. Republicans might be able to swing a few more Democrats to their side to avoid having to make a decision on the nuclear option, but it’s too early to say how realistic that might be.

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