The Democrats Could Block Neil Gorsuch

by Chris Tognotti
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On Tuesday, Jan. 31, all of America got its first look at the first Supreme Court nomination of the Trump era. And in the end, it was one of the names bandied about for weeks ― the pick was Neil Gorsuch, who was reportedly in Washington, D.C. the evening of the announcement to help gin up suspense. And with the progressive base of the Democratic Party animated and fervent about a strong resistance being put up to President Trump's agenda, you might be wondering: can the Democrats block Gorsuch's nomination, or is it already a lost cause?

The simple answer is yes, they could theoretically block him, but there are procedural moves, to say nothing of routine political pressures, that the GOP can use to ultimately push him through regardless of the opposition. It's all a matter of whether they're willing to take the steps necessary to do so.

Here's the basic idea: there are currently 52 Republican senators against 46 Democrats, and two independents who caucus with the Democrats and broadly vote with them. All that's needed to push a Supreme Court nominee across the finish line is a simple majority, which means provided the Republicans can avoid three or more of their senator defecting, Gorsuch is in great shape. But there's one weapon the Democrats have at their disposal, one that the American public became all-too familiar with during the Obama years ― the filibuster, which demands that at least 60 senators to vote for cloture for the confirmation process to move forward.

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In other words, so long as the Senate Democrats lose no more than seven of their votes to the Republican side, the filibuster holds strong, and prevents the confirmation vote from taking place. There's no guarantee that enough Democrats wouldn't defect to break the filibuster, however, given some of their more moderate, compromise-inclined members. If there's anything that the current climate of protest and activism on the left suggests, however, it's that such a decision could hugely inflame the party's base, to an intense and politically damaging extent.

And yet, the Republicans would still have one recourse to get Gorsuch through. Namely, they can abolish the institution of the filibuster outright, in what's popularly known in D.C. as the "nuclear option." In recent days, Senate Majority Leader Mitch McConnell has tried to tamp down discussion of that possibility, stating that he believes Senate rules require a two-thirds vote to do so. That's a break from his predecessor Harry Reid, who abolished the filibuster for non-Supreme Court judicial nominations back in 2013 with a mere 52 votes.

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Trump himself has made it clear that he thinks McConnell should blow up the entire filibuster in the same way Reid did, telling Fox News' Sean Hannity last week that the nuclear option should be on the table due to "obstructionists" in the Democratic Party.

In other words, even though the Democrats can try to block Gorsuch with as much solidarity and cohesion as they can, it won't matter if McConnell moves to end the filibuster altogether, because then Supreme Court nominations become a simple matter of an up-or-down majority vote, and the Democrats are in the minority. It remains to be seen whether Trump's insistence can move McConnell on this, or whether he might change his mind of his own accord. But in the end, the Republicans hold far more power in this situation than the Democrats can, and could still theoretically win the fight even against maximum resistance.