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The Supreme Court fight stands at a crossroads

Red velvet drapes hang at the back of the courtroom at the U.S. Supreme Court building in Washington, June 20, 2016.

Despite various rumors to the contrary, Senate Democrats appear poised to subject Neil Gorsuch’s Supreme Court nomination to a 60-vote standard. Politico reports that it’s a threshold Donald Trump’s choice for the high court isn’t likely to reach.

Supreme Court nominee Neil Gorsuch’s path to 60 votes is rapidly closing – setting the stage for a nuclear showdown in the Senate as soon as next week.

Senior Democratic sources are now increasingly confident that Gorsuch can’t clear a filibuster, saying his ceiling is likely mid- to upper-50s on the key procedural vote.

To be sure, some Senate Dems are likely to vote with Republicans, at least on the cloture vote that would, in theory, end a filibuster and clear Gorsuch for an up-or-down floor vote. But Republicans would need more than eight of the 48 Senate Democrats to break ranks, and by all appearances, those votes appear unlikely to materialize.

The question then becomes what the Senate Republican majority intends to do about it. The probable outcome – the GOP execute its own “nuclear option” – would eliminate Supreme Court filibusters permanently, for both parties. The may be some reluctance among a few Republicans to do this, but to date, zero GOP senators are on record opposing the move.

In the meantime, Republicans are preparing for the showdown with a series of very bad arguments.

* Double standards: Senate Majority Whip John Cornyn (R-Texas) said earlier this week, “We’re not going to be treated by a double standard.” Given that Cornyn and other Republicans refused to even give a hearing to Merrick Garland, a moderate, compromise nominee, here’s a tip for the GOP: if you don’t want to be laughed at, avoid references to “double standards.”

* Let’s pretend 2016 didn’t happen: White House Press Secretary Sean Spicer told reporters yesterday, “When the shoe was on the other foot, when a Supreme Court nominee for a Democratic president went through the confirmation hearings and meetings with senators from both parties, neither Justices Kagan nor Sotomayor faced an attempted Senate filibuster.” That’s true, but perhaps Spicer can remind us what happened with President Obama’s other nominee.

* Precedent: Sen. Marco Rubio (R-Fla.) insisted this week that Gorsuch would be the “first ever” Supreme Court nominee to face a filibuster. That’s not, strictly speaking, true. Abe Fortas faced a filibuster in 1968. William Rehnquist faced a pair of cloture votes: once when he was nominated to serve as an associate justice in 1971, and another when he was nominated for chief justice in 1986. More recently, Samuel Alito faced a cloture vote in 2006, which he passed with 72 votes (even though he was confirmed with 58 votes).

* Tradition: Sen. Lamar Alexander (R-Tenn.) said yesterday that the likely Democratic filibuster against Gorsuch “flies in the face of 230 years of Senate tradition.” Alexander had no similar concerns about imposing a blockade against any Obama nominee last year, which also flew in the face of 230 years of Senate tradition.

Indeed, Alexander should probably avoid climbing onto any high horses on this issue. While there’s clearly plenty of hypocrisy to go around when it comes to partisanship and judicial nominees, in the Bush/Cheney era, Alexander repeatedly made a public pledge to never participate in any filibuster against any judicial nominee from any president, Democrat or Republican, so long as he served in the Senate.

The Tennessee Republican broke his word, without explanation, when Obama became president. With this in mind, perhaps Alexander can spare us the lectures about “tradition.”

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