Neil Gorsuch will be confirmed as the ninth supreme court justice this week, the Senate majority leader, Mitch McConnell, said on Sunday, adding: “Exactly how that happens will be up to our Democratic colleagues.”
Speaking to Fox News Sunday, the Kentucky Republican did not say he would invoke the “nuclear option” to override a looming Democratic filibuster. But he did say the week to come “will end with confirmation”.
Republicans, who hold 52 Senate seats, need 60 votes to confirm President Trump’s pick. If Democrats maintain their opposition, Republicans are likely to turn to the “nuclear option”, by which Senate rules are changed to allow confirmation on a simple majority.
In 2013, in the face of Republican obstruction of Obama appointments, Democrats used the “nuclear option” to change rules for judicial nominations below supreme court level.
“Even though I very much disliked the way the Senate Democrats did this in 2013, in effect it restored the practice, the practice and the custom of the Senate, of not filibustering judicial nominees,” McConnell told Fox.
Democratic opposition to Gorsuch is rooted in the treatment by Republicans of Merrick Garland, the judge nominated by Barack Obama to replace Justice Antonin Scalia, who died in February 2016.
Senate Republicans did not schedule a hearing for Garland, arguing with at best shaky precedent that presidents in their last year in the White House do not get to make supreme court appointments.
Gorsuch, 49 and a federal appeals court judge based in Denver, has met more than 70 senators and sat through confirmation hearings. If confirmed, he would restore the 5-4 tilt of the court in favour of conservative interpretations of the constitution.
This week two Democratic senators facing re-election campaigns in Republican-leaning states, Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota, said they would not oppose him. That gave Republicans 54 votes.
Democrats need 41 votes to mount a filibuster. Uncommitted figures, such as Michael Bennett of Colorado, Gorsuch’s home state, are therefore coming under increasing pressure. Tammy Duckworth of Illinois, Claire McCaskill of Missouri and Catherine Cortez Masto of Nevada said this week they will oppose Gorsuch.
McCaskill said: “I remain very worried about our polarised 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.”
Despite the strength of such fears, given the ages of liberal justice Ruth Bader Ginsburg (84) and regular swing vote Anthony Kennedy (80), the Senate minority leader, Chuck Schumer, has come under intense pressure from grassroots activists not to allow Gorsuch through.
This week, he told the Associated Press: “[McConnell] can prove that he cares about the Senate by not changing the rules.”
On Sunday, McConnell said it was “noteworthy that no supreme court justices have ever in the history of our country been stopped by a partisan filibuster, ever”.
The only supreme court nominee to have been blocked by a filibuster was Abe Fortas, Lyndon Johnson’s nominee for chief justice in 1968, who faced bipartisan opposition from Republicans and southern Democrats. He was already a justice.
The Democratic-led defeat of Robert Bork, a Ronald Reagan nominee in 1987, was by a straight 58-42 vote.
