Capitol Attitude

The Senate Missile Crisis: Will GOP go 'nuclear' to confirm court pick?

Former counselor to President George W. Bush provides insight on Supreme Court hearings

 

“Mother, do you think they’ll drop the bomb?” – Pink Floyd

The United States and Soviet Union stood on the precipice of nuclear war for 13 days in October, 1962. Historians regard the Cuban Missile Crisis as the closest the world ever came to nuclear war.

The Senate now inhabits a similar bluff involving the deployment of a parliamentary nuclear arsenal to muscle through the Supreme Court nomination of Neil Gorsuch. Unlike the U.S and Soviet Union, Senate Democrats actually fired an array of ballistic nuclear missiles in 2013. And as the Senate begins wrestling with the Gorsuch pick, Republicans debate whether they should return fire with a full-spread of their own nuclear torpedoes.

In November, 2013, Senate Democrats were frustrated that Republicans blocked and stalled many of President Obama’s judicial and lower-level executive branch nominees. It was customary then for the Senate to require 60 votes (known as invoking cloture) to halt debate on a nominee and end a filibuster. After various log-jams, then-Senate Majority Leader Harry Reid, D-Nev., cracked open Pandora’s Box. Reid and Democrats altered the Senate precedent on how many votes were necessary to finish debate on executive nominations. They cut the threshold from 60 yeas to 51. Still, Democrats exempted the procedural bar for Supreme Court nominees and maintained the 60 vote-requirement.

Republicans howled in protest. But after years of chatter on both sides about changing the 60-vote standard, Democrats in fact deployed what’s come to be known as “the nuclear option.”

Critics brayed at Reid. They argued that the new precedent for most nominees chipped away at the essence of the Senate. The Founders were suspect of power. So while a simple majority usually rules the day in the House of Representatives, the Senate protects the rights of the minority. The Senate cedes some control to the party not in power.

Talk started immediately on Capitol Hill once President Trump picked Gorsuch to succeed the late Antonin Scalia on the Supreme Court. Sen. Jeff Merkley, D-Ore., declared he’d require the next Supreme Court nominee score 60 votes on a procedural vote – even before the president announced his selection. On Wednesday afternoon, Senate Minority Leader Chuck Schumer, D-N.Y., asserted that the Senate should subject Gorsuch to the 60-vote procedural threshold.

This talk spurred demands for Senate Majority Leader Mitch McConnell, R-Ky., to rip a page from Reid’s playbook and assure Gorsuch’s confirmation by lowering the bar.

“If we end up with gridlock, I would say Mitch, ‘go nuclear,’” said President Trump. “Go for it.”

This applies monumental pressure on the Senate Republican brass if Gorsuch’s nomination slips sideways. In this case, hitting the red button would be the “thermonuclear option.” Still, it’s likely the success or failure of Gorsuch’s nomination comes down to two factors: Senate math and the 2018 midterm elections.

The Senate breakdown is now 52 Republicans and 48 Democrats. Two independents caucus with the Democrats. That means if Republicans stick together, they still need eight Democrats to join them in order to hit the 60-vote threshold to fracture a filibuster.

Now consider the midterm elections.

Thirty-three seats are in play next year. Democrats hold 25 seats. A scant eight are up on the Republican side. So far, only two GOP seats could be in jeopardy. Meantime, Democrats will defend 12 seats which are either solid on Republican turf, or at best, in battleground states.

2018 is a brutal map for Senate Democrats. Examine Democrats who might face a competitive contest: Sens. Bill Nelson, D-Fla.; Joe Donnelly, D-Ind.; Angus King, I-Maine; Debbie Stabenow, D-Mich.; Claire McCaskill, D-Mo.; Jon Tester, D-Mont.; Heidi Heitkamp, D-N.D.; Sherrod Brown, D-Ohio; Bob Casey, D-Pa.; Tim Kaine, D-Va.; Joe Manchin, D-W.Va.; and Tammy Baldwin, D-Wis.

Look at the new electoral territory that composed part of President Trump’s coalition. The president won states like Pennsylvania and Wisconsin where few thought he had a chance. Those Senate seats could be challenging for Democrats to defend in a midterm election.

If Republicans run the table, they could set back Democrats for a generation when it comes to Senate control. Moreover, Republicans might suddenly have 60 votes on their own (that’s still the procedural bar for legislation). Thus, it might not be necessary to mess with 60 votes for anything.

Democrats are no dummies. They may not like Neil Gorsuch. But it’s entirely possible that supporting Gorsuch -- or finding a way to support Gorsuch -- could be good politics back home in a competitive election cycle. Even if Democrats choose to vote nay on actually confirming Gorsuch, they might vote yes to end debate and let the process run its course.

One out for Democrats is the fact that Scalia was a conservative and Gorsuch is a conservative. It’s a one-for-one tradeoff. Perhaps Democrats will hold back to see who Trump might nominate to succeed say a moderate like Justice Anthony Kennedy or liberal Justice Ruth Bader Ginsburg.

Schumer understands the conundrum facing Democrats even as liberal groups scream at him to fight. With a midterm map this bad, Schumer may already be assured of retaining his post as Senate minority leader in the next Congress. But a few Democratic yeas for Gorsuch could help Democrats hold their seats and avert a gambit with the thermonuclear option. That would prevent the party from dipping into a deep minority.

To paraphrase President Kennedy’s Secretary of State Dean Rusk during the Cuban Missile Crisis, “the other guy just blinked.” Not a good option for Democrats. But that scenario could quell “The Senate Missile Crisis.”

Capitol Attitude is a weekly column written by members of the Fox News Capitol Hill team. Their articles take you inside the halls of Congress, and cover the spectrum of policy issues being introduced, debated and voted on there.