Why the fight over Trump's Supreme Court pick could get ugly
WASHINGTON -- At times, Senate battles over the Supreme Court have taken on the tone of a mob movie: You hit our nominee? We hit yours.
Every new tactic brings an escalating response, no slight is allowed to pass unanswered, and there seems to be no end in sight.
This is one of those times.
President Trump last week made perhaps his most consequential decision yet, nominating appeals court Judge Neil Gorsuch to the Supreme Court to replace the late conservative stalwart Antonin Scalia. At 49, Gorsuch could serve, and shape rulings, for decades.
But his nomination is about to run into Democrats eager for a fight after Republicans spent nearly an entire year blocking former President Barack Obama's pick for the seat, Judge Merrick Garland.
Both parties are so entrenched that the coming battle has already raised talk that Republicans may invoke the "nuclear option" to change Senate rules for Supreme Court confirmations. That step would allow confirmation with a mere majority, which the GOP narrowly holds, rather than 60 votes, a move experts say would only bring more polarization to Washington.
"I'm fairly pessimistic. I don't see how you ratchet this stuff down," said Russell Wheeler, a federal courts expert at the Brookings Institution. "It seems to me it's a one-way trip."
This week, Democrats talked openly about how the Garland snub has motivated them.
"This is a stolen seat, and we're damaging the Supreme Court and the president is complicit in that," said Sen. Jeff Merkley (D., Ore.).
Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee, said her party remains "very sensitive about the abuse given to Merrick Garland."
And even the more moderate Sen. Bob Casey (D., Pa.), who faces reelection next year in a state that Trump carried, had hard feelings. Casey said he met recently with Vice President Pence, and when the topic of the Supreme Court came up, he told Pence that GOP senators' unwillingness last year to even allow a hearing for Garland will be "a weight on the process, and it kind of hangs over it."
Republicans, meanwhile, are calling on Democrats to show deference to the new president.
"Sometimes when you're around here, it feels like people are always nurturing a grievance from centuries ago or millennia ago," Sen. Ben Sasse (R., Neb.) told CNN. "It's like Middle Eastern politics."
If Democrats refuse to budge, some Republicans are agitating to eliminate the 60-vote threshold so they can advance Gorsuch using just their 52 seats. Trump told reporters this week that it was up to Senate Majority Leader Mitch McConnell (R., Ky.), but that if Gorsuch's nomination was blocked, he would recommend, "Go nuclear."
Democrats in 2013 lowered the bar for cabinet nominees to a simple majority -- a move they said was a response to GOP obstructionism -- but that has now allowed Trump's most controversial picks to win confirmation.
"I hope we can maintain the 60-vote requirement for Supreme Court judges," said Sen. Lindsey Graham (R., S.C.), once part of a "Gang of 14" that helped preserve the threshold amid the judicial wars of the mid-2000s. But he quickly added, "I don't think it's going to last over time."
The change would erase a fundamental feature of the Senate, where the rules, unlike in the House, force high court nominees and most major bills to win some bipartisan support. Without that, Graham said, "you're going to have more ideological judges and more ideological cabinet picks, because if you don't have to reach across the aisle, then the people who drive the debate are going to be the hardest of the hard."
It wasn't always this way: Graham noted that Scalia, a champion of the right, was confirmed 98-0 in 1986. Ruth Bader Ginsburg, a hero of the left, was approved 96-3 seven years later.
Obstruction, however, has delivered political benefits. After all, it's Trump, not Obama, replacing Scalia, and there is no evidence Republicans paid any price at the polls last November.
Republicans say the feuds started with Democrats' all-out opposition to Supreme Court nominee Robert Bork in 1987, though Princeton politics professor Charles Cameron said the forces of conflict took shape in the 1970s, with the proliferation of ideological interest groups geared for battle. Bork was just the first big fight that mobilized them, he said.
Since then, Congress has grown more divided than at almost any time since the Civil War, he said, and presidents, particularly Republicans, have tended to pick more extreme nominees.
Senators now routinely stall even noncontroversial lower court nominees, Wheeler said. Sen. Pat Toomey (R., Pa.) is just one who became embroiled in a battle over an Obama pick to the Court of Appeals for the Third Circuit, Luis Felipe Restrepo, who waited more than a year for his confirmation.
Cameron, however, said Democrats might be wise to forgo vengeance this time.
Gorsuch, he argued, is replacing a fellow conservative, and thus won't change the balance of the court. If Democrats force the GOP's hand, they'll likely lose anyway, and may lose the right to filibuster, which could cripple any resistance if a liberal justice leaves the court and is replaced by a conservative.
"That's the big one, so they need to keep the filibuster out there," Cameron said.
At least one Democrat urged a cooler approach -- at his own peril. Sen. Chris Coons (D., Del.), a member of the Judiciary Committee, said his party should treat Gorsuch better than the GOP did Garland. He said the nominee deserves a hearing and vote in committee.
"If all we do is continue to exact a pound of flesh from each other, we will eventually strip our republic bare to the bone," Coons said.
Hours later, the liberal Progressive Change Committee Campaign ripped him.
"There is zero appetite among the public for weakness from Democratic politicians," the group said, "especially after Republicans stole a Supreme Court seat."