Behind the drama that will play out in the Senate over the next several days is the reality that Majority Leader Mitch McConnell took a big risk when he decided to block President Obama from filling the late Antonin Scalia’s Supreme Court seat with a liberal justice. And it’s likely to pay off for him in the form of the confirmation of Neil Gorsuch.
For that reason, and others, McConnell will not hesitate to go nuclear.
Scalia passed away on February 13, 2016, the same day as a Republican presidential debate. McConnell anticipated that Donald Trump, and possibly Sen. Ted Cruz of Texas or other candidates, would demand that GOP senators block Obama from replacing the conservative icon, a move that would have tilted the high court to the left.
To protect his vulnerable members — people like Sen. Ron Johnson of Wisconsin, Sen. Pat Toomey of Pennsylvania and Sen. Kelly Ayotte of New Hampshire — from the political fallout that he believed might ensue, McConnell took the issue off the table by taking the burden on himself.
The Kentucky Republican moved swiftly upon Scalia’s death to declare any successor nominated to replace him by President Barack Obama dead on arrival. And by DOA, McConnell meant not so much as a hearing in the Judiciary Committee for Merrick Garland, who was center left but hardly a left-wing nut.
But as it happened, he created a winning issue for Trump. The real estate tycoon won an Electoral College victory in part because many Republican voters decided that, although their nominee wasn’t what they had hoped for, he might keep the court conservative for another generation.
After all that, there is just no way McConnell, as Senate Majority Leader, will allow Democrats to block Neil Gorsuch from filling the vacant seat on the Supreme Court.
His move was risky. Indeed, there was little guarantee Trump, who at the time was headed to victory in the Republican presidential primary, would defeat Hillary Clinton in November. That left some to wonder, notwithstanding the applause from the GOP base, exactly who McConnell was leaving the seat open for.
Then there’s the cloud of nuclear option fallout that has hovered over the Senate since November of 2013.
That’s when Democrat Harry Reid of Nevada, then the Senate Majority Leader, pushed the proverbial button and triggered the so-called nuclear option. Reid applied the change to eliminate use of a filibuster on all executive branch nominees except Supreme Court justices.
Changing Senate rules, which are not dictated by the Constitution, requires the approval of 67 senators. The nuclear option is code for “breaking the rules to change the rules,” so that only 51 votes are needed to change Senate rules instead. That’s what Reid did in 2013, and that’s what McConnell will do this week.
Maybe Senate Republicans didn’t have a right to be outraged in 2013, but they were. Having covered the Senate over the years and witnessed the nuclear meltdown, I can attest that their anger was real and not the kind you see on Capitol Hill from time to time that’s manufactured for the cameras.
They held a different view of their exercise of the expansive rights of the minority party, allowed under the Senate’s self-imposed rules, and how they used that power to check the Obama administration. So their response to Reid’s nuclear bomb was more obstruction.
Sure, Obama nominees were now greased for confirmation. But nearly every other matter to come before the Senate hit a GOP roadblock. As John Thune of South Dakota, the No. 3 ranking Republican, told me at the time: “We’re not going to lie down.” And they didn’t.
Having mustered such indignation over what Republicans refer to as the “Reid rule” and having risked his majority on blocking Garland, McConnell will not let his love for the Senate as an institution (he’s a lifer, having begun his career there at 22 as an intern) trump the installation of Neil Gorsuch.
That’s why, in short order, McConnell will go nuclear and crush the Democratic minority’s parliamentary filibuster of the Gorsuch nomination.
In McConnell’s case, he will finish the job Reid started, implementing a new rule that makes 51 votes all that are required to squash a filibuster of Supreme Court nominees.
Asked if he was sure that he had at least 51 of his 52 Republicans prepared to vote to support the effort, McConnell said flatly to my Washington Examiner colleague, Susan Crabtree: “Uh, yeah.”
At the rate Trump’s presidency is going, that might be one of the few tangible accomplishments Republicans have to show for their unexpected 2016 victory. McConnell isn’t about to give that up because of a Democratic filibuster.
