Senate Minority Leader Chuck Schumer has been girding his troops to block Judge Neil Gorsuch since President Trump nominated him on Feb. 1.
Senate Democrats may have to resort to a filibuster, to pull it off, and Schumer said as much when he warned, "the Senate must insist upon 60 votes for any Supreme Court nominee.” Sixty is the magic number needed to end a filibuster and allow a vote. There are only 52 Republicans in the Senate.
Schumer was noted for his agile maneuvering in blocking the nominees of the previous Republican president, George W. Bush, when Democrats were also in the minority. Then, the New York Democrat called the filibuster “part of the hallowed process.”
In the Bush years, the Democrats warned the GOP against ending the filibuster. In 2005, then-Senate Minority Leader Harry Reid (D-NV) went so far as to suggest "the threat to change Senate rules is a raw abuse of power and will destroy the very checks and balances our founding fathers put in place to prevent absolute power by any one branch of government."
But after President Obama was elected, and Democrats gained a Senate majority, Democrats changed their tune. The filibuster became a symbol of Republican obstructionism, and had to be stopped.
Thus, in 2013, the Democrats used the “nuclear option,” voting to change the rules for the President’s nominees, and in essence ending the filibuster by requiring only a simple majority. President Obama himself suggested that the move was necessary because Republicans had used the filibuster as "a reckless and relentless tool to grind all business to a halt." President Obama added that while "neither party has been blameless... today's pattern of obstruction, it just isn't normal. It's not what our Founders envisioned."
Then the Democrats lost the Senate. And changed their minds. Again. Now once more they warn the GOP against invoking the nuclear option.
“If a nominee cannot get 60 votes, you don’t change the rules, you change the nominee,” Schumer said.
It's not the only time hypocrisy found its way into recent Supreme Court debate, critics believe.
When Justice Antonin Scalia died in 2016, Democrats insisted his slot on the Supreme Court be filled as quickly as possible. In a statement at the time, Reid suggested that "failing to fill this vacancy would be a shameful abdication of one of the Senate’s most essential constitutional responsibilities.”
President Obama nominated Judge Merrick Garland, but Republicans, under Majority Leader Mitch McConnell, declared there would be no vote for a nominee so late in the President’s term. The Senate, he said, would wait until the country had decided on a new leader to make the pick.
It was a big risk for the GOP, especially with Hillary Clinton leading in the polls. But it seemed to pay off for the GOP when Donald Trump was elected, and then picked Neil Gorsuch.
Democrats were outraged by the tactic. Sen. Elizabeth Warren, D-D-Mas.., said in a tweet that the Republicans were betraying "the duties they swore to uphold." She also wrote it would "threaten both the Constitution and our democracy itself."
However, no Democrat should have been surprised—especially Schumer.
In 2007, with the Democrats having recently regained the majority, Schumer said, regarding potential Supreme Court nominees “we should reverse the presumption of confirmation.” In fact, in the same speech, he regretted not having blocked Bush’s previous nominations. President Bush didn’t get the chance to nominate another Supreme Court Justice, but the Democrats appeared more than ready to block anyone if he did.
So today, with yet another nomination in front of him, critics are looking for Schumer to do whatever he can to stop Gorsuch, even if it means taking yet another position on the filibuster.
If so, Republicans may invoke the "nuclear option," and change the rules so that a simple majority can confirm a Supreme Court nominee. If they do, at least they’ll have precedent, thanks to the Democrats.