By Alexander Bolton and Jordain Carney - 02-05-17 06:00 AM EST
Senate Democrats and Republicans are playing chicken over whether President Trump's pick for the Supreme Court will be filibustered - and whether Republicans will go "nuclear" and change Senate rules to prevent Democrats from blocking Neil Gorsuch.
Several Republican senators have voiced misgivings about the GOP unilaterally changing Senate rules through a party-line vote to prevent the filibuster from being used against Supreme Court nominees.
Republicans also don't think they'll need to go nuclear.
Gorsuch is a conservative justice who would replace Antonin Scalia, meaning he would not shift the court's balance. He is also not as radical a choice as might have been made by Trump.
Ten Democratic senators representing red states are up for reelection next year, and Republicans think some of those members will back Gorsuch. It's possible that there will be 60 votes in favor of Gorsuch.
At the same time, GOP sources say Republicans are ready to go nuclear if Dems use the filibuster to block Gorsuch. They say Republican senators would be outraged at a rejection of Trump's first nominee.
"You can take it to the bank" one GOP leadership source said of the GOP going nuclear if Democrats block Gorsuch.
Senate Majority Leader Mitch McConnell (R-Ky.) has confidently predicted that Gorsuch will be confirmed one way or another, while dodging specific questions about what exactly his game plan is.
"I'll tell you what Mitch McConnell has asked Republicans to say...Mitch has said for every Republican to simply say 'Democrats will not succeed in filibustering the Supreme Court nominee,'" Sen. Ted Cruz (R-Texas) recently told conservative talk show host Mark Levin.
"Judge Gorsich will be confirmed and to leave the procedural steps-there's also sorts of steps to get that done, but that bottom line is they're not going to succeed," Cruz explained.
McConnell also doesn't want the focus to be on the Republican threat to deploy the so-called nuclear option, which he criticized so harshly when former Senate Majority Leader Harry Reid (D-Nev.) used it to confirm several Obama nominees to the D.C. Circuit Court of Appeals in 2013.
Because of rule changes made by Democrats in party-line votes when Reid ran the chamber, Trump's Cabinet nominees could not be filibustered.
When pressed directly on the question of the filibuster, McConnell told The Hill last week that there are not "any current plans on the rules" but GOP sources say that reflects his confidence that Democrats won't block Gorsuch because they know they'll lose in the end.
Democrats, stung over the GOP blockade of President Obama's nomination of Merrick Garland to the court, have publicly questioned the Republican resolve to go nuclear over Gorsuch.
Privately, however, they acknowledge it's highly likely the GOP would do so.
"I have no doubt they'll go nuclear if we filibuster," said one Democratic senator.
The lawmaker said Senate Democratic Leader Chuck Schumer (D-N.Y.) and other colleagues recognize this likelihood and have discussed saving an all-out filibuster for a future battle over a nomination that would dramatically tilt the ideological balance of the court.
Some Democrats have discussed a potential deal in which they would agree to confirm Gorsuch with more than 60 votes in exchange for a promise from McConnell to rule out using the nuclear option for the next court vacancy.
But there is strong skepticism among other Democrats that McConnell would have any interest in such a quid pro quo.
Schumer has tamped down talk of filibustering Gorsuch. Instead he has employed the less confrontational language of demanding that Gorsuch pass the Senate with 60 votes, an important sign that he is not far out of the mainstream.
"On a subject as important as a Supreme Court nomination, bipartisan support should be a prerequisite, it should be essential. That's what 60 votes does," he said.
After Sen. Jeff Merkley (D-Oregon) pledged to filibuster Trump's pick before even knowing who it was, according to a report in Politico, Schumer asked him to soften his remarks.
Merkley has since tempered his comments to make clear that when he pledged a battle against Gorsuch, he was "not speaking for anyone else."
"I'm not speaking for the caucus. I'm not speaking for leadership," he said.
Democratic sources say that Schumer wants to steer clear of tough talk about filibustering Gorsuch if he doesn't have any intention of cracking the whip hard enough to make sure the nominee falls short of 60 votes.
At the same time, Schumer and Democrats have to put on a tough show so the liberal base doesn't view them as rolling over. Already some Democrats have come under criticism for voting for Trump's cabinet nominees.
Michael Moore, a prominent liberal activist and filmmaker, threatened to urge primary challenges against Democrats who didn't vote to block Gorsuch.
But while the liberal base is eager to pick a big fight over the court, Democrats acknowledged this week that Trump's rollout of his nominee went smoothly.
A graduate of Columbia University and Harvard Law School, a Marshall scholar at Oxford, a clerk for two Supreme Court justices, a career in private practice and ten years of experience on the 10th Circuit Court of Appeals makes Gorsuch well qualified for the job.
There's also less incentive for Democrats to risk losing the power to filibuster future nominees over Gorsuch because he is filling the seat long-held by conservative Justice Antonin Scalia. It will not substantially change the balance of the court.
Democrats believe they would have a better chance to persuade Republican colleagues against the nuclear option if it were a liberal seat at stake and a major precedent, such as the right to an abortion established by Roe v. Wade were at stake.
Schumer would have virtually no chance of persuading Republicans to undercut McConnell if he employed the nuclear option to confirm Gorsuch, Democratic lawmakers privately concede.
In public comments, however, Democrats question whether the GOP leader has the votes he needs.
"I don't think there is a desire among the Republicans to change the rules. I really don't think there is. Could they do it? I think it would be very painful for them to do that," said Sen. Ben Cardin (D-Md.).
Republican Sens. Susan Collins (Maine), Lisa Murkowski (Alaska) and Mike Lee (Utah) have voiced misgivings about changing the filibuster rule with the nuclear option but they have not said they would vote against it if Democrats blocked Gorsuch from the court.
Conn Carroll, a spokesman for Lee, said the Utah Republican "does not favor changing the existing Senate rules."
Collins told National Public Radio, "I am not a proponent of changing the rules of the Senate."
Right now both sides are predicting the Supreme Court debate - at least over Gorsuch - will not reach that crisis point.
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