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WASHINGTON (ChurchMilitant.com) - Democrats are threatening to filibuster a vote that would put Neil Gorsuch on the Supreme Court — and Republicans are willing to change centuries-old Senate rules so they don't succeed.
Senate Minority Leader Chuck Schumer confirmed Thursday that his party would carry through with filibuster threats in order to block Gorsuch's appointment.
The threat bodes well for Gorsuch's chances. Because Vice President Pence has the tiebreaking vote, the Colorado judge needs only 50 votes for appointment. With 52 Republicans in the Senate, Democrats would have to convince at least three of them to defect and vote against their caucus. Schumer's call for a filibuster signals that Republicans probably have enough votes to get Gorsuch through.
But before they can get to the vote, the Republicans must get past the Democrats' filibuster. This requires 60 votes, according to current Senate rules.
This is where the "nuclear option" comes in: Republicans can change Senate rules to require only a simple majority to overcome a filibuster. Senate Majority Leader Mitch McConnell has said he is willing to do this, and President Trump has endorsed it if Democrats continue to block his nominees.
The "nuclear option" had already been employed by Senate Democrats in 2013, when Republicans were blocking Obama appointments to the executive branch and lower federal courts. But it has not yet been employed to push through Supreme Court nominees.
Some believed the Democrats would hold off on using the filibuster until Trump makes his second nomination to the nation's highest court. While Gorsuch's appointment tilts the Court towards judical restraint, conservatives still need one more seat before they can begin reversing decisions that created rights to abortion, sodomy and gay marriage.
Democrats spent much of this week's hearings trying to create principled arguments against the eminently qualified Gorsuch. Most of the Democrats' criticism did not rise above emotional tracts against Gorsuch's individual rulings, especially regarding an administrative law case in which Gorsuch ruled against a trucker who had abandoned his truck in the freezing cold. Minnesota Senator Al Franken tried to claim Gorsuch misread the statute in that case, but the claim didn't stick.
Other senators have doubled down on emotionalism. California Democrat Kamala Harris tweeted on Friday, "Judge Gorsuch has consistently valued legalisms over real lives. I won't support his nomination."
Driving much of the Democrats' criticism is an underlying awareness that Gorsuch is likely to roll back the Party's social agenda. During the hearings, Gorsuch was notably coy on supposed rights to abortion, gay marriage and contraception, affirming that the Court's decisions creating these rights are "settled law," but refusing to commit to the legal logic behind them.
Gorsuch's originalism was most clearly on display in his discussion of Griswold v. Connecticut, the 1965 Supreme Court decision creating a right to contraceptive use within marriage. Gorsuch affirmed that Griswold is settled law, and that it's unlikely any state would try to ban contraception in the future. But he refused to endorse the existence of a supposed "right to privacy" the Court used to justify its opinion, or to claim the opinion is correct. This stands in stark contrast to John Roberts, the current chief justice and a Catholic, who called the case "rightly decided" in his nomination hearings.
If Republicans carry through with the "nuclear option," pressing through Court nominees will be easier in the future. When the next seat opens on the Court, only a simple majority in the Senate would stand in the way of overturning decisions like Roe v. Wade. On the other hand, the nuclear option could backfire if Democrats once again gain control of Congress, giving them an easy way to ram through their nominee.
This raises questions over what tactics Democrats will use to protect that critical seat. California Representative Maxine Waters may have hinted at this Tuesday, tweeting, "Get ready for impeachment."