If senators lose their ability to filibuster Supreme Court nominees in the process of confirming Judge Neil Gorsuch to the court this week, Republicans say it will be Democrats' fault. Democrats say it will be Republicans' fault.
Either way, the likely outcome of all the political drama that's about to unfold is this: Democrats filibuster Gorsuch, Republicans blow up the filibuster, Republicans get Gorsuch on the Supreme Court.
If that's all you wanted to know about this process, then great. You can stop reading. But if you want a little more detail on how this is all going to go down, read on, so that you can follow the news like an expert this week.
Step one: Start the clock
A filibuster can play out one of two ways: Senators can talk for hours and hold up the chamber until they can't stand or talk anymore, or senators can just threaten to talk for hours, and after a couple days, the Senate simply holds a vote on whether to end debate. The latter is the way most filibusters play out these days.
Democrats already have threatened to filibuster Gorsuch. Senate Majority Leader Mitch McConnell (R-Ky.) is expected to start the clock on Tuesday on Gorsuch's nomination, and Senate procedure says by Thursday, it will be time to take a vote on whether to end debate on Gorsuch.
That brings us to …
Step two: Vote to end debate on Gorsuch
This is the crucial step for Gorsuch, because it looks as though he will not have enough support to end debate Thursday on his nomination and advance to a yes-or-no vote. He'll need 60 out of the 100 senators, and as of Monday afternoon, the maximum support he can get is 59 — thanks to 41 Senate Democrats signaling they will oppose advancing his nomination.
It's rare for a Supreme Court nominee to have to face this 60-vote hurdle. Only three others in modern history have had to overcome a vote to end debate on their nominations.
That's because until recently, the Senate usually gave the president deference to make his picks. Short of any glaring problems, they'd approve the nominee without much drama. (One other notable successful filibustered nominee, Justice Abe Fortas, was a Democrat who was filibustered in 1968 to be chief justice mostly by Republicans, who had concerns about Fortas's closeness to President Lyndon B. Johnson.)
Times are changing.
In 2013, Senate Democrats got rid of the minority party's ability to filibuster lower-court and political nominees. They kept the filibuster intact for Supreme Court nominees. But both sides knew it would only be a matter of time before a hyper-partisan situation like this put the filibuster for Supreme Court nominees in question, too.
This looks like that time. Which brings us to:
Step three: Republicans try to get rid of the filibuster for Supreme Court nominees
Initially reluctant to forever change the filibuster under his watch, McConnell appears to have accepted his fate: If Democrats oppose ending debate on Gorsuch in step two, above, Republicans will try to get rid of step two entirely for Gorsuch and all future Supreme Court nominees.
The question here becomes whether Republicans will have enough votes to get rid of the filibuster for Supreme Court nominees. In 2013, Democrats managed to change the rules with just a simple majority. Republicans control the majority of the Senate, but it's not immediately clear whether most Republicans will be okay with changing such a historic rule.
Senate Republican leaders sound confident that they'll have the votes. They are promising to get Gorsuch confirmed by the end of the day Friday, which means steps two and three (Democrats' successful filibuster of Gorsuch, and Republicans getting rid of the filibuster for him) could take place Thursday.
Step four: Either Republicans get rid of the filibuster, or they don't
If Republicans do get rid of the filibuster, that means Gorsuch could get confirmed with just a simple-majority vote — probably Friday afternoon. Republicans have enough votes for that — nearly every one of the 52 GOP senators supports him.
If they don't have to votes to change the filibuster, it's anyone's guess what will happen next. Republicans could try to strike a deal with Democrats — vote for Gorsuch this time, and we won't change the filibuster rules the next time a vacancy opens up.
It could be an attractive deal. Although Gorsuch would be replacing a conservative, the late Antonin Scalia, any other openings probably would be to replace moderate and liberal justices, and President Trump's replacements would really tilt the ideological balance of the court to the right. Sen. Christopher A. Coons (D-Del.) indicated Monday that he'd be open to having that conversation.
Trump could also get back to the drawing board and try to nominate someone who will receive support from eight to 10 moderate Democrats — enough to avoid a filibuster. That is probably the least likely outcome, but if it happens, the process would start over.