Going 'nuclear' on Supreme Court nominee Neil Gorsuch could mean extreme US justices, experts say

WASHINGTON (Reuters) - A Republican-backed Senate rule change expected on Thursday could make it more likely that presidents will pick ideologically extreme U.S. Supreme Court nominees with little incentive to choose centrist justices, experts said.

With a deep partisan divide in Washington, Democrats are using a procedural tactic called a filibuster to try to block confirmation of President Donald Trump's Supreme Court nominee Neil Gorsuch in the Republican-led Senate.

Majority Leader Mitch McConnell has threatened to change long-standing rules in the 100-seat Senate if the Democrats succeed with the filibuster in order to prohibit the tactic against Supreme Court nominees. That would mean such nominees could be confirmed by a simple majority rather than needing to first muster a 60-vote super-majority.

Experts said the rule change, called the "nuclear option," could produce an ever-more ideologically polarized Supreme Court. Over the years with the Senate narrowly divided, the filibuster rule has meant that presidents have needed to make appointments who could win at least a few votes from the other party.

RELATED: Where SCOTUS nominee Neil Gorsuch stands on key issues

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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)

Abortion

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)

Religion

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.

(Getty)

Immigration

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)

Environment

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)

Marijuana

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)

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For the court, the prospect of a filibuster has shaped the way presidents pick nominees, said Stephen Wermiel, a Supreme Court scholar at the American University Washington College of Law.

"Although it has not been widely used, the idea that it was there as a deterrent to presidents appointing justices who might be considered extreme has been a significant factor," Wermiel said.

Republican Senator John McCain, a defender of Senate traditions, warned of the consequences of the rule change, though he said he would reluctantly support the move.

"We will see more and more nominees from the extremes of both left and right," McCain said. "I do not see how that will ensure a fair and impartial judiciary. In fact, I think the opposite will be true, and Americans will no longer be confident of equal protection under the law."

SEE ALSO: Gorsuch: Oregon Sen. Jeff Merkley speaks for more than 15 hours to block SCOTUS pick

Republican Senator Lindsay Graham said Supreme Court nominees "are going to be more ideological, not less" with the rule change, which he warily supported.

'LAST SHRED OF BIPARTISANSHIP'

The nuclear option would erase "the last shred of bipartisanship in the Senate confirmation process," said Senate Democratic leader Chuck Schumer, who led the filibuster against Gorsuch.

Elimination of the filibuster for Supreme Court nominees could matter most with the next vacancy on the nine-seat court after Gorsuch, who was nominated by Trump to replace Justice Antonin Scalia, who died last year. Three current justices are 78 or older: liberal Ruth Bader Ginsburg is 84; conservative Anthony Kennedy, who sometimes sides with the court's liberals in big cases, is 80; and liberal Stephen Breyer is 78.

Having more justices who are ideologically extreme would make compromise among them harder and lead to rulings the public may view as based more on a political agenda than the law, said University of Massachusetts, Amherst political science professor Paul Collins, co-author of a book on Supreme Court confirmation hearings.

If confirmed as expected on Friday, Gorsuch would restore the court's 5-4 conservative majority. Overturning the landmark 1973 Roe v. Wade ruling that legalized abortion nationwide may become more likely if there is no filibuster to moderate the choice of future court nominees, Wermiel said.

SEE ALSO: Influential conservative groups attack Republicans amid a fight over the future of their Obamacare repeal bill

Without a filibuster, a future Democratic president with a Democratic-led Senate could feel free to name a justice from the dogmatic left. The result would be a court even more polarized than the current one already is perceived to be, said Brookings Institution think tank expert Russell Wheeler said.

"An ideologically-driven administration would eschew middle-of-the-road judges," Wheeler said. "They would stack the court with ideological soulmates."

Trump advisor Leonard Leo said the best way to avoid extreme nominees is through the electoral process. Trump made it clear during the 2016 presidential campaign he would pick from a list of potential Supreme Court nominees that he made public, and the voters elected Trump, Leo said.

"People knew or should have known what they were getting when he was elected president," Leo said.

RELATED: A look at some Democrats who will vote no on Neil Gorsuch's confirmation

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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)

 (Photo by Win McNamee/Getty Images)

Independent Sen. Bernie Sanders (Vermont)

(Photo by Mark Reinstein/Corbis via Getty Images)

Sen. Bob Casey (Pennsylvania)

Photographer: Andrew Harrer/Bloomberg via Getty Images

Sen. Ron Wyden (Oregon)

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 Sen. Patty Murray (Washington)

Photographer: Andrew Harrer/Bloomberg via Getty Images

Sen. Elizabeth Warren (Massachusetts) 

 REUTERS/Joshua Roberts

Sen. Jeff Merkley (Oregon) 

REUTERS/Joshua Roberts

Sen. Tom Carper (Delaware)

 Photographer: Andrew Harrer/Bloomberg via Getty Images

Sen. Tammy Baldwin (Wisconsin)

 (Photo By Tom Williams/CQ Roll Call)

Sen. Bill Nelson (Florida)

Photographer: Andrew Harrer/Bloomberg via Getty Images

Sen. Cory Booker (New Jersey)

 Photographer: Andrew Harrer/Bloomberg via Getty Images

Sen. Mazie Hirono (Hawaii)

REUTERS/Joshua Roberts

Sen. Tom Udall (New Mexico) 

 (Photo by Paul Morigi/WireImage)

Sen. Jack Reed (Rhode Island)

Photographer: Pete Marovich/Bloomberg via Getty Images

Sen. Chris Murphy (Connecticut) 

 (Photo By Tom Williams/CQ Roll Call)

Sen. Sheldon Whitehouse (Rhode Island) 

 (Photo by Drew Angerer/Getty Images)

Tim Kaine, 2016 Democratic vice presidential nominee, speaks during an event conducted entirely in Spanish, a first for an organized presidential campaign event, in Phoenix, Arizona, U.S., on Thursday, Nov. 3, 2016. Five days from the U.S. presidential election, polls released Thursday showed the race narrowing, with Democrat Hillary Clinton holding on to a slim lead over Republican Donald Trump. Photographer: Daniel Acker/Bloomberg via Getty Images

Sen. Tim Kaine (Virginia)

REUTERS/Jonathan Ernst

California Attorney General Kamala Harris speaks at the Facebook headquarters in Menlo Park, California February 10, 2015. Harris, who is seeking a U.S. Senate seat, addressed a group of school children on Safer Internet Day. REUTERS/Robert Galbraith (UNITED STATES - Tags: SCIENCE TECHNOLOGY HEADSHOT PROFILE SOCIETY BUSINESS)

Sen. Al Franken (Minnesota)

(Photo by Zach Gibson/Getty Images)

Sen. Debbie Stabenow (Michigan) 

REUTERS/Joshua Roberts

Sen. Ed Markey (Massachusetts)

(Photo By Bill Clark/CQ Roll Call)

Sen. Chris Van Hollen (Maryland)

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Senate Minority Whip Dick Durbin (Illinois) 

Photo Credit: Reuters

Sen. Jeanne Shaheen (New Hampshire) 

REUTERS/Jonathan Ernst 

Sen. Gary Peters (Michigan)

REUTERS/James Lawler Duggan

Sen. Maggie Hassan (New Hampshire)

 REUTERS/Brian Snyder

Sen. Amy Klobuchar (Minnesota)

 REUTERS/Joshua Roberts

Sen. Sherrod Brown (Ohio) 

Photographer: Zach Gibson/Bloomberg via Getty Images

Sen. Pat Leahy (Vermont)

Photographer: Andrew Harrer/Bloomberg via Getty Images

Sen. Ben Cardin (Maryland)

(Photo by Samuel Corum/Anadolu Agency/Getty Images)

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
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