McConnell Faces Decision On Whether To Go Nuclear For Gorsuch

With confirmation that Democrats have enough votes to filibuster Neil Gorsuch, the ball is squarely in the Republican's court about how to proceed. Mitch McConnell has made all the signals that he is prepared to invoke the nuclear option in order to get Gorsuch confirmed. Said McConnell, "We’re going to get Judge Gorsuch confirmed. It’ll really be up to [Democrats] how the process to confirm Judge Gorsuch moves forward", implying a willingness to invoke the nuclear option.

But it is still an open question whether McConnell truly wants to go nuclear and whether there are actually enough votes within his own Republican caucus to actually make that happen. As Martin Longman points out, there are some good reasons why some Republicans my be a bit leery about pushing Gorsuch through with a simple majority vote and setting a new precedent. One of those concerns would be that Roe v. Wade will actually be repealed with just one more Trump appointee, creating an incredible backlash against the Republicans in power. For years, certainly since Reagan's days, the GOP loves to keep the base inspired by promising to repeal Roe v. Wade but have no shown any real legislative and judicial desire to actually keep the base inspired. In addition, demographics raise the probability the Democrats will hold the presidency more often than Republicans in the near future, giving Democrats their own power to reshape the Court. Lastly, there are probably still some Republican Senators, though very few, who recognize just how destructive and partisan this move would be.

Longman also points out how disproportional McConnell's decision to go nuclear would be compared to Harry Reid's decision to require a simple majority vote for lower court and executive branch nominees. Reid faced over 500 filibusters and even worked out a number interim agreements to move nominees forward before going nuclear. McConnell will be doing it after on filibuster. On the other hand, after the failure of Trumpcare, the pressure from the base to see Gorsuch confirmed will be enormous. Trump himself will not want to suffer another defeat, even if it at the hands of Democrats this time. Yet, after a divisive vote in the House on Trumpcare that has torn the GOP caucus there asunder, McConnell may be setting up Republican Senators for a similar destructive vote in the Senate.

If McConnell does decide to go nuclear, it will just be another destruction of the governing norms that Republicans have engaged in for the last two decades. And, in combination with the refusal to even consider Merrick Garland, will turn the Supreme Court itself into a partisan battleground. The Court has always been much more political than the myth that gets told about it. If McConnell goes nuclear, any sliver of the remaining veneer of unity and non-partisanship on the Court will be stripped away.