Senate panel advances Gorsuch to 'nuclear' showdown

The Senate Judiciary Committee on Monday morning advanced the nomination of Supreme Court nominee Neil Gorsuch, setting up a bitter floor fight that will likely end with Republicans triggering the "nuclear option" to change Senate rules.

The committee voted along party lines, with all 11 Republicans voting for Gorsuch and all 9 Democrats voting against him.

Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellGOP strategist donates to Alabama Democrat McConnell names Senate GOP tax conferees Brent Budowsky: A plea to Alabama voters MORE (R-Ky.) is expected to schedule a vote on Thursday to end a Democratic filibuster of Gorsuch, which would require 60 votes. 

But it appears that Democrats have the votes to block Gorsuch from moving forward. Four more senators — Dianne FeinsteinDianne Emiel FeinsteinGrassley blasts Democrats over unwillingness to probe Clinton Avalanche of Democratic senators say Franken should resign Blumenthal: ‘Credible case' of obstruction of justice can be made against Trump MORE (Calif.), Mark WarnerMark Robert WarnerSenate panel moves forward with bill to roll back Dodd-Frank Comey back in the spotlight after Flynn makes a deal Warner: Every week another shoe drops in Russia investigation MORE (Va.), Patrick LeahyPatrick Joseph LeahyAvalanche of Democratic senators say Franken should resign America isn't ready to let Sessions off his leash Your tax dollars fund Afghan child rape MORE (Vt.) and Chris CoonsChristopher (Chris) Andrew CoonsSenate ethics panel wants details on sexual harassment allegations American innovation depends on strengthening patents Tax reform and innovation – good news and a cloud MORE (Del.) — on Monday said they will support the filibuster, giving Democrats the 41 votes needed to sustain it.

Senate Republicans are poised to invoke a rarely used procedural tactic known as the nuclear option to change the rules to exempt Supreme Court nominees from filibusters. 

Sen. Lindsey GrahamLindsey Olin GrahamGOP and Dems bitterly divided by immigration We are running out of time to protect Dreamers US trade deficit rises on record imports from China MORE (R-S.C.), a member of the committee, said a rules change is all but inevitable.

“If we have to, we will change the rules, and it looks like we’re going to have to,” Graham told colleagues. “I hate that, I really, really do.”

The tactic is termed the nuclear option because it as viewed as a major escalation of partisanship in the chamber. 

Democrats triggered it in 2013 to prevent Republicans from filibustering executive branch nominees and judicial nominees below the level of Supreme Court. This year, that rules change has helped Republicans confirm many of President Trump's Cabinet nominees.

GOP lawmakers said last week that their caucus is united behind changing the rules to get Gorsuch confirmed.

Senate Democratic Leader Charles SchumerCharles (Chuck) Ellis SchumerAmerica isn't ready to let Sessions off his leash Schumer celebrates New York Giants firing head coach: ‘About time’ GOP should reject the left's pessimism and the deficit trigger MORE (D-N.Y.) said Sunday it is “highly, highly unlikely” that Gorsuch will garner 60 votes.

Schumer argued that Gorsuch hurt his case for confirmation by being evasive during his confirmation hearings, declining to say whether he agreed with the conclusion of landmark cases. 

“He wouldn’t even answer whether he supported “Brown v. Board,” Schumer said, citing the 1954 case that desegregated schools.

Republicans countered that Gorsuch was not obligated to express his personal legal philosophy or how he might rule on issues likely to come before the high court.  

Thirty-nine Democrats had announced their opposition to Gorsuch before Monday’s markup, while only three Democratic centrists, Sens. Joe ManchinJoseph (Joe) ManchinTrump rips Dems a day ahead of key White House meeting Senate panel moves forward with bill to roll back Dodd-Frank Wealthy outsiders threaten to shake up GOP Senate primaries MORE (W.Va.), Heidi HeitkampMary (Heidi) Kathryn HeitkampThe Hill's 12:30 Report Avalanche of Democratic senators say Franken should resign Senate panel moves forward with bill to roll back Dodd-Frank MORE (N.D.) and Joe DonnellyJoseph (Joe) Simon DonnellyTrump rips Dems a day ahead of key White House meeting The Hill's 12:30 Report Avalanche of Democratic senators say Franken should resign MORE (Ind.), saying they would support him.

Gorsuch’s chances of winning 60 votes took two major hits recently when Sens. Claire McCaskillClaire Conner McCaskillDemocrats turn on Al Franken Trump rips Dems a day ahead of key White House meeting The Hill's 12:30 Report MORE (D-Mo.) and Jon TesterJonathan (Jon) TesterGOP and Dems bitterly divided by immigration Senate panel moves forward with bill to roll back Dodd-Frank GOP defeats Schumer bid to delay tax vote MORE (D-Mont.), both up for reelection next year in states carried by Trump, said they would vote no.

Sen. Michael BennetMichael Farrand BennetAvalanche of Democratic senators say Franken should resign GOP and Dems bitterly divided by immigration Schumer downplays shutdown chances over DACA fight MORE (Colo.) in a statement Monday became the fourth Democrat to say he would not support the filibuster of Gorsuch.

“Changing the Senate rules now will only further politicize the Supreme Court and prevent the Senate from blocking more extreme judges in the future,” he warned.

Bennet introduced Gorsuch, a fellow Coloradan, at his confirmation hearings. The senator did not did not say in his statement how he would vote on the question of final confirmation.

Yet the other undecided Democrats broke against the nominee, making his filibuster all but assured.

The 41st vote to sustain the filibuster came from Coons, a member of the Judiciary Committee who announced his position on Monday.

“Throughout this process, I have kept an open mind … I have decided that I will not support Judge Grouch's nomination in the Judiciary Committee meeting today," Coons said.

"I am not ready to end debate on this issue. So I will be voting against cloture," Coons said, absent a deal to avoid the nuclear option.

Gorsuch testified before the Judiciary Committee for close to 20 hours over two days last month. He came up for consideration before the committee on March 27 but Democrats delayed a vote for a week.

Democrats have slammed Gorsuch for what they characterized as his selectively activist record on the 10th Circuit Court of Appeals and his refusal to reveal his personal legal philosophy ruing three days of confirmation hearings.

As they did during the hearings, Democrats on Monday cited Gorsuch's opinion siding with an employer who fired a trucker who disobeyed an order to stay with a disabled vehicle for hours in subzero weather.

They have also criticized his narrow view of the Individuals with Disabilities Education Act, which the Supreme Court effectively nullified last month.

“Judge Gorsuch unnecessarily went out of his way to apply his own view of what the law should be, even when it would have devastating effects on people’s lives,” said Feinstein, the ranking Democrat on the Judiciary Committee.

Republicans countered by noting that Gorsuch has been rated well-qualified by the American Bar Association and that 97 percent of his decisions were decided unanimously.

“His record on the bench has proved the judge falls well within the mainstream,” said Senate Judiciary Committee Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyGrassley blasts Democrats over unwillingness to probe Clinton GOP and Dems bitterly divided by immigration Thanks to the farm lobby, the US is stuck with a broken ethanol policy MORE (R-Iowa).

“Legal commentators across the political spectrum have recognized that he is mainstream,” he added, citing, in a rare instance, liberal MSNBC host Rachel Maddow, who called Gorsuch “a fairly mainstream choice that you might expect from any Republican president.”