Updated on April 6 at 1:20 p.m. ET
The judicial filibuster in the Senate is now dead.
Republicans on Thursday ended decades of Senate tradition by changing the rules to keep Democrats from blocking President Trump’s nomination of Judge Neil Gorsuch to the Supreme Court. On a strict party-line vote at the direction of Majority Leader Mitch McConnell, the Senate invoked what has become known as the “nuclear option” and formally lowered the threshold for ending debate on a nomination to 51 votes from 60, paving the way for Gorsuch to win confirmation on Friday.
The demise of perhaps the Senate’s most famous rule—on nominations if not yet on legislation—came in a series of procedural votes rendered anti-climatic by the aura of inevitability that had been building for weeks after Trump named the 49-year-old Colorado appellate judge to replace the late Justice Antonin Scalia on the Supreme Court. The move not only ensures the return of a fifth conservative vote to the court but likely will permanently alter the selection of justices going forward: A president whose party controls the majority in the Senate will no longer need to choose a candidate that can receive bipartisan support, empowering liberal and conservative activists over those in the middle.
Democrats forced the showdown by amassing 44 votes in opposition to granting Gorsuch a final up-or-down vote, denying him the 60 needed to end a filibuster. In press conferences and floor statements, they argued that Gorsuch’s judicial philosophy fell outside the political mainstream and said they could not abide Trump reconstituting a conservative majority on the high court for decades to come. Gorsuch, they said, had further turned them off by his evasive answers at his confirmation hearings and what some Democrats considered a condescending tone.
But the Democratic opposition ultimately was as much about Merrick Garland as it was about Neil Gorsuch. They acted both in response to pressure from their party’s base and their own fury at McConnell’s decision last year to deny Garland so much as a hearing after former President Barack Obama nominated him in the wake of Scalia’s sudden death 14 months ago.
In the days leading up to Thursday’s vote, Minority Leader Charles Schumer implored McConnell and Senate Republicans to “step back from the brink” and uphold the tradition of the filibuster by forcing Trump to name a new, consensus nominee.
“Mr. President, the 60-vote bar in the Senate is the guardrail of our democracy,” he said in a floor speech before the vote. “When our body politic is veering too far to the right or to the left, the answer is not to dismantle the guard rails and go over the cliff, but to turn the wheel back toward the middle. The answer is not to undo the guardrails—the rules—it’s to steer back to the middle and get a more mainstream candidate.”
Yet it was Schumer’s party that began to chip away at the filibuster four years ago, when under then-Majority Leader Harry Reid, Democrats eliminated the 60-vote threshold for all executive-branch positions and judicial nominees below the Supreme Court. While they exempted the Supreme Court at the time, there was little doubt that had Hillary Clinton won the presidency with a Democratic Senate majority, the party would have changed the rules in the face of a similar Republican filibuster.
There was similarly little doubt about what McConnell would do. He vowed from the outset that Gorsuch would be confirmed and accused Democrats of breaking with Senate precedent with a first-ever partisan filibuster of a Supreme Court nominee. (A collection of both Democrats and Republicans successfully blocked Abe Fortas’s elevation to chief justice in 1968.)
The only question in recent days was whether all 52 Republicans, including its longest-serving guardians of Senate tradition, would stick with McConnell and change the rules. Senator John McCain of Arizona publicly agonized over the move but said the Democratic filibuster had left him no choice. Centrist GOP Senator Susan Collins of Maine convened last-minute talks over a deal to confirm Gorsuch while preserving the filibuster for future Supreme Court nominations. But when those failed, she, too, voted with her party.
In a lengthy speech on Thursday, McConnell pinned the blame for the escalation of the judicial wars on Democrats, and offered them one last opportunity to turn back. “If you truly cannot support the nomination of this eminently qualified nominee, then at least allow the bipartisan majority of the Senate that supports Gorsuch to take an up-or-down vote,” he said. “You already deployed the ‘nuclear option’ in 2013, don’t trigger it again in 2017.”
By then, however, the decisions had been made. In two successive roll-call votes, Democrats blocked the Gorsuch nomination under the 60-vote threshold. McConnell then sought, unsuccessfully, for the presiding officer to rule that the Democrats’ rule change in 2013 applied as well to Supreme Court nominations. When that failed, he submitted a motion asking whether senators wanted to keep the 60-vote threshold. As expected, all 52 Republicans voted to toss it, overcoming the 48 Democrats who wanted to sustain it. After that, the Senate voted again to defeat the filibuster under the new, 51-vote threshold. Three Democrats—Senators Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota, and Joe Donnelly of Indiana—voted with Republicans to support Gorsuch. Senator Michael Bennet of Colorado, a Democrat, switched his vote to back the filibuster after Republicans changed the rules. The Senate will now hold a final, up-or-down vote on Gorsuch’s confirmation on Friday, with a simple majority of 51 votes needed to pass.
McConnell had assured senators that he would not seek to revoke the 60-vote threshold for legislation, preserving the Democrats’ ability to influence or even block key parts of the Trump agenda. But some lawmakers were skeptical that even that tool would long survive.
“While I’m sure we will continue to debate what got us here, I know that in 20, 30, or 40 years, we will sadly point to today as a turning point in the history of the Senate and the Supreme Court,” Schumer said before the vote. “This is a day when we irrevocably move away from the principles our Founders intended for these institutions: principles of bipartisanship, moderation, and consensus.”
“Let us go no further on this path,” he concluded.
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