Sens. Roger Wicker (R-Miss.) and Thomas R. Carper (D-Del.) are not usually partisan firebrands, particularly on presidential appointments.
Back in 2013, Wicker helped temporarily defuse a showdown over Republican filibusters of President Barack Obama’s nominees to the judiciary and agencies. More than a decade ago, Carper voted to confirm President George W. Bush’s first Supreme Court nominee and opposed Democratic efforts to filibuster the other.
Now, with about 10 days left in the showdown over President Trump’s first Supreme Court nominee, Judge Neil Gorsuch, both Wicker and Carper have turned dour in their outlook for what the battle means for the Senate — and the country.
Wicker is all but certain that Democrats have enough votes to block Gorsuch’s confirmation next week with a filibuster — by demanding a procedural step that takes 60 votes to clear. That, in turn, probably would prompt the Republicans to change the rules unilaterally to allow Gorsuch’s confirmation, and all other Supreme Court picks thereafter, by a simple majority.
“I think it’s a done deal,” Wicker said Tuesday. “That’s the way it’s headed.”
Carper agreed, explaining that he would rather see Republicans eliminate supermajority thresholds for Supreme Court nominees, further poisoning the already toxic atmosphere in Washington, than do anything to support Gorsuch.
The purpose of the rule is to promote bipartisanship and consensus, which in turn creates legitimacy and buy-in for policy and governance. If the filibuster goes away, so does yet another layer of collegiality in Congress — and another way to shore up Washington’s credibility.
It would be the second time in 3½ years that the Senate majority has breached the long-held standard of first clearing a two-thirds majority vote to alter the chamber’s rules. The first time Democrats, then led by Harry M. Reid (Nev.), ended 60-vote filibusters for all nominees except those for the Supreme Court.
If they all contribute to taking the next step, both parties will have completed their hypocritical march to the opposite side of this issue over the past decade. Democrats, after years of demanding speedy passage of Obama’s nominees, now clamor for scrutiny and supermajorities. Republicans have quickly adopted the old Democratic talking points. Senate Majority Leader Mitch McConnell (R-Ky.), who at times has played the role of custodian of his chamber’s rich history, will have made the same move that led to what he called in 2013 “a sad day in the history of the Senate.”
And once both sides are guilty of breaching that standard on nominations, it would seem to be only a matter of time before a future majority obliterates filibusters on other legislation.
Sen. Robert P. Casey Jr. (Pa.), one of the first Democrats to declare his support for a filibuster of Gorsuch, said that the likelihood that the judge will not win 60 votes proves that he is outside the mainstream. “If you’re a consensus pick, you should be able to get 60 votes,” Casey said.
In reality, Gorsuch’s hearings last week unfolded without any new revelations and followed the playbook of hearings for the four justices confirmed this century. The majority asked soft questions to bolster his case, and the minority asked tough questions and demanded, unsuccessfully, that he predetermine how he would rule on hot-button issues.
In another time, Gorsuch easily might have been considered the consensus candidate that Casey described.
As a result, there is a sense of raw politics in Democrats’ growing opposition to Gorsuch, because liberal anti-Trump activists are pushing Democrats to oppose every Trump move.
With most centrist voters not paying attention to procedural fights over confirmations, some Democrats think the bigger political penalty would be to disappoint their base by allowing an easy confirmation this time.
Republicans misjudged Casey, hoping he would come around to supporting Gorsuch because of his congeniality — and because Trump won his state. The Democrat cited Gorsuch’s rulings against federal agencies in their regulatory decisions.
And Carper said he cannot forgive Republicans for never even holding a hearing on the first nominee for the current court vacancy — Judge Merrick Garland, whom Obama nominated after Justice Antonin Scalia died in February 2016.
“I have a very hard time getting over what was done to Merrick Garland, a very hard time,” Carper said Tuesday. “That’s a wrong that should be righted, we have a chance to do that, and it won’t be by confirming Judge Gorsuch the first time through.”
Interviews with Wicker, Carper and half a dozen other senators who could anchor something called the “Reasonable Caucus” delivered few signs of compromise ahead. If those assessments are right, by the end of next week Republicans will have triggered the “nuclear option,” as the potential rule change is known by insiders.
No concrete attempts have been made to convene the bipartisan huddles that have sometimes worked in previous fights over the state of the Senate.
“Not that I’ve seen,” said Sen. John McCain (R-Ariz.), the co-leader of the bipartisan Gang of 14 that averted a similar showdown in 2005. McCain said that the environment is too polarized now and that the old personalities — powerful chairmen, often war heroes, willing to buck their leadership — have been replaced by a less social, more timid crop of senators.
“We just have a different environment around here,” he said. “People don’t sit down and talk the way they used to.” Asked whether he considered that depressing, McCain went on: “It is, it really is.”
McCain is one of just three left from the 2005 gang, and the other two, Sens. Lindsey O. Graham (R-S.C.) and Susan Collins (R-Maine), have both adopted a hard-line tone toward Democrats on the matter of Gorsuch, whom they consider highly qualified.
Collins, the leading moderate Republican, had supported holding a vote on Garland. But now she thinks Democrats need to move on because Trump won the election.
“That is in the past, and it is not fair to Judge Gorsuch to deny him a straight up-or-down vote based on what happened with Merrick Garland,” she said Tuesday.
Collins doesn’t see a bipartisan pact coming together and said lawmakers should fight over the next vacancy on the court: “I think it would be wise of the Democrats to vote for him and live to fight another day.”
Some Democrats have suggested privately that they first must demonstrate that they have the votes to block Gorsuch and then commence negotiations to avoid the nuclear showdown. But even moderate Democrats such as Carper are not showing much willingness to support a deal that would put Gorsuch on the court in exchange for the possibility of filibustering the next nominee.
“Not much of a prize,” he said.
That would set the filibuster in motion. And almost like Cold War generals mapping out war games, Republicans say they would be compelled to respond in kind. Otherwise Democrats would have set a new precedent for blocking a Supreme Court nominee.
“We can’t let that happen,” Wicker said.