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 McConnellFive issues that will define the months until the midterms Key senators to watch on Democrats' social spending bill Republicans seem set to win the midterms — unless they defeat themselves 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 FeinsteinProgressive groups urge Feinstein to back filibuster carve out for voting rights or resign Senators call for Smithsonian Latino, women's museums to be built on National Mall Five faces from the media who became political candidates MORE (Calif.), Mark WarnerMark Robert WarnerFive Senate Democrats reportedly opposed to Biden banking nominee The Hill's Morning Report - Presented by ExxonMobil - House to vote on Biden social spending bill after McCarthy delay Overnight Defense & National Security — Presented by Boeing — US mulls Afghan evacuees' future MORE (Va.), Patrick LeahyPatrick Joseph LeahyThe Hill's Morning Report - Ins and outs: Powell renominated at Fed, Parnell drops Senate bid On The Money — Biden sticks with Powell despite pressure Welch to seek Senate seat in Vermont MORE (Vt.) and Chris CoonsChris Andrew CoonsSenators: US allies concerned Senate won't pass annual defense bill The Hill's Morning Report - Presented by ExxonMobil - House to vote on Biden social spending bill after McCarthy delay Can America prevent a global warming cold war? 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 GrahamGraham emerges as go-to ally for Biden's judicial picks This Thanksgiving, skip the political food fights and talk UFOs instead Biden move to tap oil reserves draws GOP pushback 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 SchumerChuck SchumerDemocratic frustration growing over stagnating voting rights bills Schumer mourns death of 'amazing' father Feehery: The honest contrarian 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 ManchinJoe ManchinKlobuchar confident spending bill will be finished before Christmas Democratic frustration growing over stagnating voting rights bills Key senators to watch on Democrats' social spending bill MORE (W.Va.), Heidi HeitkampMary (Heidi) Kathryn HeitkampVirginia loss lays bare Democrats' struggle with rural voters Washington's oldest contact sport: Lobbyists scrum to dilute or kill Democrats' tax bill Progressives prepare to launch counterattack in tax fight MORE (N.D.) and Joe DonnellyJoseph (Joe) Simon DonnellyBiden to have audience with pope, attend G20 summit Biden taps former Indiana Sen. Donnelly as ambassador to Vatican Republicans may regret restricting reproductive rights MORE (Ind.), saying they would support him.
Gorsuch’s chances of winning 60 votes took two major hits recently when Sens. Claire McCaskillClaire Conner McCaskillLobbying world Ex-Rep. Akin dies at 74 Republicans may regret restricting reproductive rights MORE (D-Mo.) and Jon TesterJonathan (Jon) TesterFive ways Senate could change Biden's spending plan Five Senate Democrats reportedly opposed to Biden banking nominee Dark money group spent 0M on voter turnout in 2020 MORE (D-Mont.), both up for reelection next year in states carried by Trump, said they would vote no.
Sen. Michael BennetMichael Farrand BennetSenators call for Smithsonian Latino, women's museums to be built on National Mall Sununu exit underscores uncertain GOP path to gain Senate majority 'An earthquake': GOP rides high after Democrats' Tuesday shellacking 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 GrassleyChuck GrassleyGraham emerges as go-to ally for Biden's judicial picks Iowa Democrat drops bid to challenge Grassley after death of nephew Bipartisan senators press FBI, inspector general for changes following Nassar case 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.”