On Tuesday, President Donald Trump nominated Neil Gorsuch to become, if he is confirmed, the 113th justice to sit on the Supreme Court. That’s a pretty big number, but a rash of smaller numbers is what’s really worrying the Democrats.
Those numbers are 78, 80, and 83 — and they could be what stops Senate Democrats from blocking Gorsuch’s confirmation to the court.
What are the numbers? Well, 78 is the age of Justice Stephen Breyer. Eighty is the age of Justice Anthony Kennedy. And 83 is the age of Justice Ruth Bader Ginsburg.
Breyer and Ginsburg are two of the most reliably liberal votes on the high court. Kennedy is a swing vote who often sides with the court’s liberals.
In the next four years, as the Washington Examiner pointed out, any or all of them might be unable to perform the duties to which they were appointed for one reason or another, opening the way for Trump to make one or more new appointments to the Supreme Court.
Senate Democrats who might be considering a filibuster to stop Gorsuch’s appointment have to know they’d be tempting Senate Majority Leader Mitch McConnell to change the Senate’s rules to end the filibuster entirely, the so-called “nuclear option.” And that could have disastrous implications for the Democrats further down the road.
“Democrats are at risk of making Republicans go nuclear if they hold up Neil Gorsuch’s nomination,” Examiner writer Philip Wegmann wrote. “If they force Mitch McConnell to pull the trigger, the Republican majority leader and noted institutionalist isn’t likely to hold back next time around. When a simple majority is all that’s required, there’s no telling who an increasingly conservative GOP might nominate.”
The nuclear option, which Trump supports, seems increasingly likely. Senate Minority Leader Chuck Schumer, D-N.Y., has indicated that his party would exercise the filibuster on the Gorsuch nomination — a means of extending debate on a topic indefinitely and preventing a Senate floor vote. Under Senate rules, it takes 60 votes to end a filibuster and force a question to a floor vote.
“We Democrats will insist on a rigorous but fair process,” Schumer said Wednesday, according to USA Today. “There will be 60 votes for confirmation. Any one member can require it. Many Democrats already have, and it is the right thing to do. On a subject as important as a Supreme Court nomination, bipartisan support should be a prerequisite. It should be essential. That’s what 60 votes does.”
Of course, as The New York Times pointed out, Democrats want Gorsuch’s name to be associated with a “power grab” since the Senate refused to vote on Obama nominee Merrick Garland in the final year of Obama’s presidency. However, Garland’s nomination came in an election year, after President Barack Obama had repeatedly ignored Congress’ advise and consent role.
And it’s worth remembering that in 2013, when Senate Democrats controlled the chamber, then-Majority Leader Harry Reid exercised the “nuclear option” himself to end the filibuster for federal court judges below the Supreme Court level and other presidential appointments.
Perhaps most damning to the Democrats’ case is the fact that Gorsuch was unanimously approved to be on the 10th Circuit Court by voice vote, making him a particularly uncontroversial candidate. Given that Gorsuch would replace the reliably conservative Antonin Scalia, it also wouldn’t change the composition of the court.
The departure of the moderate Kennedy or the liberal Ginsburg and Breyer could be a disaster for the left if the Democrats prove now that they are incapable of allowing an up-or-down vote without the nuclear option being invoked. It opens the door to whoever Trump wants to nominate — and that would be a disaster for the Democrat Party.
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