Update: Judge Neil Gorsuch has enough votes to be confirmed as the new Supreme Court justice. In a Senate vote on Friday, he broke the 51-vote threshold he needed to be confirmed.
On Thursday, Democrats mounted a filibuster, denying Gorsuch the 60 votes needed to advance to a final vote. Then, Senate Majority Leader Mitch McConnell raised a point of order, suggesting that Supreme Court nominees should not be subjected to a 60-vote threshold but instead a simple majority in the 100-member Senate.
McConnell was overruled, but he appealed the ruling. And he prevailed on a 52-48 party-line vote. The 60-vote filibuster requirement on Supreme Court nominees was effectively gone, and with it the last remains of potential collaboration between the Republicans and Democrats in the Senate.
Gorsuch is expected to be sworn in within days, in time to hear the final cases of the term.
This story was originally published on April 6, 2017.
The road is clear for Judge Neil Gorsuch to be confirmed as the next Supreme Court justice.
On Thursday, Democrats blocked President Trump's SCOTUS nominee with a historic filibuster on the Senate floor, but their victory was short-lived. Republicans struck back with the "nuclear option," a Senate rules change that would put Gorsuch on the court anyway and eliminate the filibuster for all future Supreme Court candidates. The original vote was 55-45, short of the 60 needed to advance Gorsuch over procedural hurdles to a final vote.
All 44 Democrats and independents voted against advancing Gorsuch, and for procedural reasons, Senate Majority Leader Mitch McConnell cast his vote with them to enable the vote to be reconsidered.
Many senators voted from their seats, a rare and theatrical occurrence, and then stayed in the chamber for the drama yet to unfold.
McConnell made procedural maneuvers to lower the vote threshold to advance Gorsuch's nomination from the current 60 votes to a mere majority in the 100-member Senate. Under those new rules, which the 52-member Republican majority can ratify despite bitter objections from the Democrats, another vote will be held, which would allow Gorsuch to move forward to final passage.
He is expected to be confirmed on Friday and take his seat on the court later this month, in time to hear the final cases of the term.
The maneuvering played out with much hand-wringing from all sides about the future of the Senate, as well as unusually bitter accusations and counter-accusations as each side blamed the other for bringing the Senate to this point.
McConnell accused Democrats of forcing his hand by trying to filibuster a highly qualified nominee in Gorsuch, 49, a 10-year veteran of the 10th U.S. Circuit Court of Appeals in Denver with a consistently conservative record. McConnell vowed that the rules change would block the Gorsuch filibuster, and all future ones, a change many lawmakers lamented could lead to an even more polarized Senate, court, and country.
"This will be the first, and last, partisan filibuster of a Supreme Court nominee," McConnell insisted. "This is the latest escalation in the left's never-ending judicial war, the most audacious yet, and it cannot and will not stand."
Supreme Court filibusters have been nearly unheard of in the Senate, but the confrontation is playing out amid an explosive political atmosphere with liberal Democrats furious over the Trump presidency and Republicans desperate to get a win after months of chaos from Trump.
And Democrats remain livid over McConnell's decision last year to deny consideration to then-President Barack Obama's Supreme Court nominee, Judge Merrick Garland, who was ignored for nearly a year by Senate Republicans after the death of Justice Antonin Scalia. Instead, McConnell kept Scalia's seat open, a calculation that is now paying off hugely for Republicans and Trump, who will be able to claim the biggest victory of his presidency to date if Gorsuch is confirmed as expected.
"We believe that what Republicans did to Merrick Garland was worse than a filibuster," declared Senate Minority Leader Chuck Schumer, D-N.Y. "We didn't hear two words in the long speech of Senator McConnell: Merrick Garland."
The coming rules change is known as the "nuclear option" because of its far-reaching implications. "The nuclear option means the end of a long history of consensus on Supreme Court nominations; it weakens the standing of the Senate as a whole," Schumer said.
Moderate Republican Sen. Susan Collins of Maine said roughly 10 senators of both parties worked over the weekend to come up with a deal to stave off the so-called "nuclear option," as the rules change is known, but couldn't come to agreement. In 2005, a bipartisan deal headed off GOP plans to remove the filibuster barrier for lower-court nominees, but in 2013 Democrats took the step, leaving the filibuster in place only for Supreme Court justices.
And now, with political polarization at an extreme, the Senate is on the verge of killing off the Supreme Court filibuster, the one remaining vestige of bipartisanship on presidential appointments. For now, the filibuster barrier on legislation will remain, though many fear it could be the next to go.
"I fear that someday we will regret what we are about to do. In fact, I am confident we will," said Sen. John McCain, R-Ariz. "It is imperative we have a functioning Senate where the rights of the minority are protected regardless of which party is in power at the time."
Nonetheless, McCain was prepared to vote with McConnell on the rules change, saying he felt he had no choice.
Gorsuch now counts 55 supporters in the Senate: the 52 Republicans, along with three moderate Democrats from states that Trump won last November — Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, and Joe Donnelly of Indiana. A fourth Senate Democrat, Michael Bennet from Gorsuch's home state of Colorado, has said he will not join in the filibuster against Gorsuch but has not said how he will vote on confirmation.