Getting rid of the filibuster for all nominations could make Senate Republicans' job on everything else a lot harder. If the filibuster goes, congressional experts warn that so, too, does any remaining semblance of bipartisan cooperation on the Senate's approval process for Cabinet members and judges and any other Supreme Court vacancies that may pop up.
"This is just a prelude to what we're going to see over the next four years," warned Russell Wheeler, a Supreme Court expert with the Brookings Institution.
No side would be blameless in this deterioration of Senate rules and cooperation. Democrats are the ones laying the tripwire for ending the filibuster for Supreme Court picks.
At least one Senate Democrat is promising to block Trump's pick — before the pick is even announced — as, essentially, punishment for Republicans blocking Judge Merrick Garland. The chief judge of the U.S. Court of Appeals for the District of Columbia Circuit was nominated by then-President Barack Obama last year to replace Scalia, but the Republican-controlled Senate refused to hold a vote on the nomination, or even a hearing on it.
"This is a stolen seat. This is the first time a Senate majority has stolen a seat," Sen. Jeff Merkley (D-Ore.) told Politico's Burgess Everett in an interview Monday.
It would also be the second time in modern history that a Supreme Court nominee has been filibustered — though historians point out that even George Washington failed to get one of his nominees through.
Here's how a filibuster standoff would work: If Merkley does follow through on his threat to filibuster, and if Senate Democrats stand behind him, Republicans will not have enough votes to even proceed to a vote on Trump's Supreme Court nominee. They have 52 senators; Senate rules require 60 to end a filibuster.
That very plausible situation will leave Republicans with two unenviable decisions: Give up on getting Trump's pick through — or get rid of the filibuster so that a simple majority (51) could approve the nominee.
Senate Majority leader Mitch Mcconnell (R-Ky.) has said there's no way he'll give up on filling that ninth Supreme Court spot.
"There are any number of ways this could end," McConnell told Morning Consult in an interview published Friday. "But what I will tell you is we are going to get this judge confirmed. How that occurs will depend largely on how the other side handles it."
Which leaves getting rid of the filibuster. That would be a somewhat awkward distinction for Republicans, given they decried Democrats' filibuster-scrapping decision in 2013.
If Republicans do decide to try to unravel the filibuster, Democrats could be putting them in another no-win situation: Having to choose between getting rid of the filibuster to approve Trump's Supreme Court pick, or approving Trump's other nominees (who only need a simple majority). In the slow-moving Senate, Republicans may not have time for both, especially if Democrats drag out the Cabinet-approval process as long as possible.
"To the extent Democrats want to gum up the Senate for the next two years, this is a way they can," said Josh Chafetz, a Cornell Law professor.
Blocking Trump's Supreme Court nominee, slowing down his Cabinet nominees as much as possible, forcing Republicans to choose between ending the filibuster for all nominations and other priorities: These are no-prisoners strategies. And the fact that Democrats are seriously considering them suggests they're sensing a will among their base to be more obstructionist.
Sen. Kirsten Gillibrand (D-N.Y.) recently got some 2020 buzz on the left for voting against almost all of Trump's Cabinet nominees. Close to 70 House Democrats skipped Trump's inauguration — perhaps, it seemed likely, to avoid a primary challenger on the left. With each week, another Democrat helps normalize opposing Trump's every move.
"If you think the Trump administration is going to go down in flames," Chafetz said, "the best thing you can do is to be seen as a staunch opponent from the beginning."
In the end, Republicans have the tools to put Trump's nominee on the high court. They've waited a year for this and taken some big risks to make sure they could replace a conservative with a conservative and maintain the court's 5-4 conservative lean.
But Democrats look poised to make the process as painful as possible for Republicans — and Trump.