SCOTUS fight: Senate barrels toward 'nuclear' showdown over Gorsuch

The Senate is barreling toward a showdown that could alter how the body governs itself and have far-reaching implications for the nation's highest court.

The fight is over the confirmation of President Donald Trump's Supreme Court nominee Neil Gorsuch, but the nominee himself is perhaps more collateral damage than incendiary spark after a decade of Senate infighting that has bred a toxic atmosphere of mistrust and animosity. The high-stakes political battle waging around him could lead to a major change in Senate rules and pave the way for more overtly ideological nominees to the high court.

Democrats who will vote no on Neil Gorsuch's confirmation
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Democrats who will vote no on Neil Gorsuch's confirmation

Senate Democratic Leader Chuck Schumer (New York)

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Independent Sen. Bernie Sanders (Vermont)

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Sen. Bob Casey (Pennsylvania)

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Sen. Ron Wyden (Oregon)

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 Sen. Patty Murray (Washington)

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Sen. Elizabeth Warren (Massachusetts) 

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Sen. Jeff Merkley (Oregon) 

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Sen. Tom Carper (Delaware)

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Sen. Tammy Baldwin (Wisconsin)

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Sen. Bill Nelson (Florida)

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Sen. Cory Booker (New Jersey)

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Sen. Mazie Hirono (Hawaii)

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Sen. Tom Udall (New Mexico) 

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Sen. Jack Reed (Rhode Island)

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Sen. Chris Murphy (Connecticut) 

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Sen. Sheldon Whitehouse (Rhode Island) 

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Sen. Tim Kaine (Virginia)

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Sen. Al Franken (Minnesota)

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Sen. Debbie Stabenow (Michigan) 

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Sen. Ed Markey (Massachusetts)

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Sen. Chris Van Hollen (Maryland)


Senate Minority Whip Dick Durbin (Illinois) 

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Sen. Jeanne Shaheen (New Hampshire) 

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Sen. Gary Peters (Michigan)

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Sen. Maggie Hassan (New Hampshire)

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Sen. Amy Klobuchar (Minnesota)

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Sen. Sherrod Brown (Ohio) 

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Sen. Pat Leahy (Vermont)

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Sen. Ben Cardin (Maryland)

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Senator Claire McCaskill (D-MO)
Senator Richard Blumenthal (D-CT) questions Supreme Court nominee judge Neil Gorsuch during his Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, U.S., March 21, 2017. REUTERS/Joshua Roberts

The Senate Judiciary Committee will vote Gorsuch's nomination out of committee Monday, likely along party lines. The next step is for the full Senate to consider his nomination, a process that could move the Senate into unprecedented territory.

Emboldened by their political bases, Senate Majority Leader Mitch McConnell and Senate Minority Leader Chuck Schumer are entering the week by standing firm.

"Neil Gorsuch will be confirmed this week. How that happens will really depend on what will happen with our Democratic friends," said McConnell on NBC's "Meet the Press" on Sunday.

Schumer and his fellow Democrats could block Gorsuch's nomination because they are requiring a 60-vote threshold for him to pass — also known as a filibuster. With only 52 Republicans, the GOP will have to find the support of eight Democrats. As of Sunday evening, only three Democrats said they'd oppose a filibuster, and just eight remained undecided.

Related: These Are the Democrats Voting Against Neil Gorsuch

Republicans are seemingly prepared to respond by changing the Senate rules to allow Supreme Court nominations to pass with a simple majority, a dramatic move known as the "nuclear option." Such a move would be the latest escalation in a long-running partisan battle over the judiciary and other presidential appointments in the upper chamber.

"You shouldn't change the rules. You should change the nominee," said Schumer, who predicted on "Meet the Press" that Gorsuch will not receive the support of 60 senators.

"It's a big deal," said Norm Orenstein, scholar at the center-right American Enterprise Institute. "You have a situation where you have rules and you have norms of behavior. The rules provide some significant check, but you still gotta operate with norms."

And while both Republicans and Democrats are aware of the calamity of the impending outcome, they also recognize that damage might be beyond repair after years of increased partisanship.

Republican Senator John McCain of Arizona has been engaged in conversations with some of his Republican and Democratic colleagues to stave off the worst-case scenario, but those haven't yet led to true negotiations.

Sen. Chris Coons (D-Del.) is one of the Democratic senators McCain has spoken to, but Coons said there is "not a lot of common ground" to work with.

Where SCOTUS nominee Neil Gorsuch stands on key issues
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Where SCOTUS nominee Neil Gorsuch stands on key issues

Supreme Court nominee Neil Gorsuch looks on as Senate Judiciary Committee. President Donald Trump has nominated Judge Gorsuch to the Supreme Court to fill the seat that had left vacant with the death of Associate Justice Antonin Scalia in February 2016.

(Photo by Drew Angerer/Getty Images)


Gorsuch has never directly ruled on Roe v. Wade, the 1973 ruling that legalized abortion in the U.S., but he was pressed on the landmark ruling during his Senate confirmation hearing. 

When Sen. Lindsey Graham (R-S.C.) asked Gorsuch what he would have done if President Trump asked him to overturn Roe v. Wade, the judge responded, "I would have walked out the door. It's not what judges do. I don't do it at that end of Pennsylvania Avenue and they shouldn't do it at this end either, respectfully."

Some refer to passages from a book Gorsuch wrote on assisted suicide. In the book, The Future of Assisted Suicide and Euthanasia, Gorsuch wrote, "The idea that all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong."

(Photo credit should read JIM WATSON/AFP/Getty Images)

Second Amendment

Gorsuch has never directly ruled on the Second Amendment. However, during his confirmation hearing, Sen. Dianne Feinstein (Calif.) questioned Gorsuch on District of Columbia v. Heller -- a landmark ruling that overturned a ban on handguns and certain requirements when storing guns in Washington D.C. 

Gorsuch offered limited responses to Feinstein's questioning, but did conclude that Heller was the "law of the land." 

(REUTERS/John Sommers II/File Photo)


Gorsuch is widely regarded as a strong proponent of religious liberty.

In a landmark ruling, Gorsuch sided with an employer in the Burwell v. Hobby Lobby Stores, Inc. case in 2013, making it legal for a non-profit organization to deny employees access to contraceptives if it goes against their religious beliefs. The case ultimately reached the Supreme Court, where it was also ruled in the favor of Hobby Lobby. 

In another case, Gorsuch ruled in favor of a Wyoming inmate. The ruling allowed the inmate to use a prison yard sweat lodge, that he had previously been denied access to, for Native American religious worship.



Gorsuch has not hinted to how he feels about President Trump's proposed travel ban, and many experts are split on how the SCOTUS nominee would vote on the executive order that bans immigrants from six majority-Muslim countries. The ban is currently suspended following rulings by federal judges in Hawaii and Maryland. 

Gorsuch has sided with immigrants in past cases, and as Cornell University constitutional law professor Michael Dorf noted to the Denver Post -- "Gorsuch’s sympathy for people in religious cases, a general skepticism of executive power and a history of ruling for immigrants give some reason to think he could be sympathetic to plaintiffs challenging a ban on people from certain countries."

(REUTERS/Eric Thayer)


In the 2015 case Energy and Environment Legal Institute vs. Epel, Gorsuch sided with a Colorado law that requires 20 percentage of electricity sold in the state to be from renewable sources. The case was filed by an out-of-state coal company, claiming the law was a threat to interstate commerce. 

(REUTERS/Jim Urquhart)

LGBTQ rights

When pressed about gay rights and strict interpretations of the law by Sen. Dianne Feinstein, (D-Calif.) during his confirmation hearing, Gorsuch responded that "no one is looking to return us to horse and buggy days."

"We’re trying to interpret the law faithfully, taking principles that are enduring and a Constitution that was meant to last ages and apply it and interpret it to today’s problems." 

Gorsuch also told the Senate Judiciary Committee, "A good judge starts with precedent and doesn’t reinvent the wheel. So to the extent, there are decisions on these topics — and there are — a good judge respects precedent."

(Photo by David McNew/Getty Images)


While Gorsuch does hail from Colorado, the first state to legalize marijuana for recreational use, it is still unclear where he stands on the issue.

In 2015, Gorsuch ruled against a dispensary, forcing the company to pay taxes on items they wrote off as business expenses in an effort to avoid incriminating themselves due to a federal law banning marijuana. 

(Photo by Linda Davidson / The Washington Post via Getty Images)


"There is not a lot of trust between Republicans and Democrats in the Senate," Coons told NBC News.

Sen. Claire McCaskill, R-Missouri who is up for re-election in 2018 in a state that Trump won, announced her opposition to Gorsuch on Friday, and said she'd go a step further and support a filibuster against him. She admitted in a Medium post that her decision could have deep political ramifications in the future.

"I remain very worried about our polarized politics and what the future will bring, since I'm certain we will have a Senate rule change that will usher in more extreme judges in the future." McCaskill wrote.

Democrats forced a rules change in 2013 after Senate Republicans blocked most of President Barack Obama's judicial nominees and several cabinet positions. The "nuclear option" imposed then reduced the threshold for passage from 60 votes to 51 votes for all cabinet and judicial positions other than the Supreme Court, allowing Obama's nominees to pass. It's a decision that Schumer has said he laments.

But McConnell's refusal to even consider President Barack Obama's Supreme Court nominee Merrick Garland, not giving him a hearing or even holding meetings, inflamed tensions.

The Republican leader has cited election-year politics as the reason for that decision — and it is one that Democrats admit is playing into their considerations on Gorsuch, who would assume the seat that has sat vacant since Justice Antonin Scalia died more than a year ago.

"As I talk to Democrats, I think we are all outraged at how Merrick Garland was treated in the process and that got us to where we are today. As I talk to Republicans, they remind me of the 2013 changes in rules," Coons said. "And frankly there is a long list of back and forth, back and forth about we believe they badly mistreated Barack Obama's nominees and they believe that Barack Obama overreached and that we were oblivious or unconcerned about their issues to executive overreach."

Buoyed by their party's activists, Schumer and McConnell have little incentive to ratchet down the extremes. The Senate's mood is reflective of the mood in the country. In a recent NBC News/Survey Monkey poll released last week, 84 percent of Republicans want a vote on Gorsuch while only 31 percent of Democrats do. (However, most polls taken after Garland's nomination indicated that a majority of Americans wanted him to be confirmed.)

Liberal groups are urging the Senate Democrat's campaign arm, the DSCC, to challenge Senators Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota because they have announced that they will support Gorsuch. Senator Joe Donnelly of Indiana is the third Democrat to announce his support for Gorsuch.

"I was deeply disappointed by the way the most recent Supreme Court nominee, Judge Garland, was treated by the Senate, but as Senator, I can only vote on the nominee that comes to the Senate floor," Donnelly said in a statement Sunday. "However, I believe that we should keep the current 60-vote threshold for Supreme Court nominees."

And on the right, the conservative Judicial Crisis Network, which has spent at least $10 million targeting senators over Gorsuch, put out a statement ahead of this week's vote.

"We will be on the front lines supporting him and his colleagues," Carrie Severino, chief counsel of the Judicial Crisis Network, said in a statement. "Chuck Schumer is engaged in a scorched-earth, first-ever partisan filibuster to try and block Judge Gorsuch."

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