By Ed O’Keefe and Sean Sullivan / The Washington Post
WASHINGTON — The Senate is set on Friday to confirm Judge Neil Gorsuch to serve on the U.S. Supreme Court, capping a year-long fight by Republicans to restore the conservative tilt of the nation’s highest court.
Gorsuch, 49, a Denver-based judge on the U.S. Court of Appeals for the 10th Circuit, is expected to be confirmed shortly after noon. Vice President Mike Pence will preside over the Senate during the vote and Gorsuch could be sworn-in as early as Friday.
His confirmation was all-but-assured on Thursday, when Republicans cleared the way for Gorsuch by overcoming a historic Democratic blockade and changing the rules of the Senate.
The long-anticipated rules change now means that all presidential nominees for executive branch positions and the federal courts need only a simple-majority vote to be confirmed by senators.
The GOP decision to ram through the rules change is also likely to further divide an increasingly partisan Senate. Several senators openly fretted that eliminating the minority party’s right to block high court nominees could lead to the end of filibusters on legislation — effectively transforming the Senate’s traditional role in the legislative process as the slower, more deliberative chamber.
Filibuster fizzle
Gorsuch’s confirmation will represent a major victory for President Donald Trump, capping a momentous week for the White House that included the first military air strikes of the young administration. And the vote will be a significant accomplishment for Senate Majority Leader Mitch McConnell, who refused to even consider then-President Barack Obama’s nominee after Justice Antonin Scalia died in February 2016, leaving the seat open for Trump to nominate a more conservative jurist.
The unflinching discipline displayed by McConnell, R-Ky., in rejecting pleas from Democrats for a hearing on Judge Merrick Garland enraged them and prompted demands for a Gorsuch blockade by their progressive base. But the Democrats’ high-profile filibuster had fizzled by midday Thursday after McConnell moved to alter the rules and received the backing of his entire Republican caucus.
As he left the Senate chamber, the usually reserved McConnell flashed a bit of showmanship — he high-fived some colleagues, awkwardly embraced Sen. Charles E. Grassley, R-Iowa, and gave a thumbs-up to photographers.
The majority leader argued that ending the filibuster for high court nominees will actually decrease partisan tensions in the Senate and return the upper chamber to a time when filibusters weren’t so commonly used to block nominations.
“This will be the first and last partisan filibuster of a Supreme Court nomination,” McConnell vowed ahead of Thursday’s votes.
Senate Minority Leader Charles E. Schumer, D-N.Y., responded by warning that “the consequences for the Senate and for the future of the Supreme Court will be far-reaching.”
And Sen. Joe Manchin III, D-W.Va., who supports Gorsuch but opposed the rules change, said it was “everybody’s fault” that the Senate invoked the “nuclear option” and no longer requires 60 votes to confirm Supreme Court nominees. Manchin declared that Republicans will “rue the day that this happened” if they lose their majority.
George Washington “had it right” about the Senate, Manchin said. “We’re the saucer. Should be, anyway. Should be cooling off that tea… . The hot tea’s going to scald you now. It’s going to burn you.”
Republicans, determined to restore the conservative tilt of the Supreme Court since Scalia’s unexpected death, worked in lockstep on Thursday to see that Gorsuch would ultimately be confirmed. They remained remarkably united on the three votes needed to set Gorsuch on a glide path to confirmation.
By 1 p.m. on Thursday, most of the drama was over. On a vote of 55 to 45, all Republicans and three Democrats voted to proceed to final debate on Gorsuch, 49, a Denver-based judge on the U.S. Court of Appeals for the 10th Circuit. Senators at that point had the option of using as many as 30 hours for debate.
Thursday was the second time in less than four years that senators voted to reshape the way they offer advice and consent to a president on executive branch and judicial nominees. In 2013, Democrats — angered by years of Republican blockades on Obama’s nominees — pushed through a rules change that allowed all executive branch nominees and lower-court picks to be confirmed with a simple majority vote. But Democrats did not include Supreme Court nominees as part of the changes, believing that lifetime appointments to the nation’s highest court should be handled differently.
Sen. Susan Collins, R-Maine, a past critic of invoking the nuclear option, said negotiations to prevent the rules change failed this time because of what the Senate has become.
“There’s such a profound lack of trust, and that’s what many of us are committed to trying to rebuild,” she said. “We need to make very clear to the leaders on both sides that there’s no support for curtailing our existing ability to filibuster legislation.”
Sen. Angus King, I-Maine, agreed that the clash was “hard to avoid” because Republicans saw Gorsuch as such an indisputably qualified nominee and Democrats had deep concerns about him.
The ghost of Garland
As it had for much of the past few weeks, Garland’s name hovered over the proceedings in a way that was impossible to miss.
Sen. Richard J. Durbin, D-Ill., stridently faulted McConnell for blocking Garland, saying that “the senator from Kentucky has made history… . He made history in denying a presidential nominee the opportunity for a hearing and a vote which had never, never happened before.”
Sen. Orrin G. Hatch, R-Utah, conceded that Democrats “are still bitter about Merrick Garland and, you know, I can’t blame them for that.” But he added, “If the roles were reversed they would have just tromped all over us. I mean, you know, they’d have done the same thing.”
The carefully staged deconstruction of the Senate tradition began Thursday with a “cloture vote” — a special feature of Senate procedure that ends debate on a bill or nomination, allowing the process to move to a final vote. Schumer and McConnell looked on from their desks at the front of the Senate chamber just a few feet apart as the voting began. Schumer took gulps of water between conversations with Durbin, his top deputy, and aides. McConnell sat calmly at his desk with a solemn expression.
Other senators sat patiently reading, checking their smartphones or filing in and out of the Senate cloakrooms as the clerk called the roll.
“It was very sanitary. Unemotional. Telegraphed in advance. Planned in advance,” said Sen. Bob Corker, R-Tenn.
After about 30 minutes, McConnell stood and switched his vote on advancing Gorsuch from “yes” to “no” — a parliamentary tactic allowing him to bring up the nomination again and to begin moves aimed at changing the rules.
The two Senate leaders then launched a series of procedural maneuvers that culminated with the rules change. McConnell first raised a “point of order” to suggest that Gorsuch’s nomination could be advanced with a simple majority rather than the usual 60 votes. Schumer responded by unsuccessfully moving to delay Gorsuch’s nomination and to adjourn the Senate. Then senators voted, with Republicans prevailing.
McConnell’s move was the culmination of nearly 14 months of work by the majority leader, who insisted just hours after Scalia died in February 2016 that his seat would remain open for the next president to fill. Since the start of this year, Gorsuch’s confirmation has sat atop his to-do list.
His gloating — reserved as it was — was criticized by wary Democrats.
“My GOP colleagues high fived each other after voting to damage pillars of our democracy. This is no cause for celebration,” Sen. Richard Blumenthal, D-Conn., said on Twitter.
But Republicans remained cheery. Sen. Steve Daines, R-Mont., casting his first vote on a nomination to the high court, paused before heading to the Senate floor to record a message using Snapchat. He adjusted the camera to make sure the shot included a statue of Benjamin Franklin behind him.
“It’ll be great to have a fellow Westerner on the court!” he said of Gorsuch, who is from Colorado.
No Supreme Court nominee has ever been blocked by a single-party filibuster. Abe Fortas, nominated to be chief justice in 1968, was the only nominee to get blocked on the cloture vote, by a bipartisan coalition that had enough votes to defeat his nomination outright.
Gorsuch’s nomination was announced in late January, and three days of confirmation hearings began on March 20 in the Senate Judiciary Committee. Formal debate on his nomination officially began Tuesday and was dominated into Wednesday by Sen. Jeff Merkley, D-Ore., one of the Senate’s most liberal members, who spoke overnight for more than 15 hours against Gorsuch.
Merkley, among other Democrats, signaled on Thursday that beyond concerns with Gorsuch, they would not necessarily support restoring Senate traditions if they retake control of the chamber.
“We can’t unilaterally disarm,” Merkley said.
But Sen. Chris Murphy, D-Conn., warned that the change to Senate rules “makes it less likely you’re going to have centrist, moderate nominees on the Supreme Court.”
Sen. Sheldon Whitehouse, D-R.I., who grilled Gorsuch on campaign finance laws during the confirmation hearings, argued that no deal between the parties to maintain a filibuster would prevent Republicans from jamming through a future nominee if the court’s balance was at stake.
Asked what he was thinking as he walked to the Senate floor to vote on Gorsuch, Whitehouse said one word: “Inevitability.”
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