Pat Toomey ready to back nuclear option on Supreme Court 'if that's what it takes'

Sen. Pat Toomey speaks to editorial boards of the Philadelphia Inquirer and Daily News, October 11, 2016, in Philadelphia. ( JESSICA GRIFFIN / Staff Photographer)

WASHINGTON -- Sen. Pat Toomey is ready to go nuclear.

The Pennsylvania Republican said Wednesday he would support a Republican move to invoke the so-called nuclear option to eliminate Senate rules that create a 60-vote hurdle and confirm President Trump’s Supreme Court nominee, Neil Gorsuch, with a bare Senate majority.

If Republicans make the move -- following Democrats' taking the same step for lower courts in 2013 -- it would dismantle a procedural check long designed to force federal judges to win some measure of bipartisan support. It would also mark the culmination of decades of steadily intensifying combat over judges and open the door to an increasingly polarized Supreme Court, to go along with the sharp partisanship now enmeshed in nearly every aspect of civic debate.

It could eventually change the very nature of the Senate, by design the more slow moving and deliberate chamber in Congress, where rules give the minority some power and force compromise for most major legislation to pass.

Senate rules allow the minority party to require 60 votes to advance most bills or Supreme Court nominees -- a rule that, in theory, means that high court picks have to be broadly acceptable. Doing away with the provision would make it easier for presidents whose allies have the barest of Senate control to push through judges on party lines, giving them leeway to choose more extreme ideological justices.

In a call with reporters Toomey said Republicans would invoke the rules change if Democrats use the filibuster to block an up-or-down vote next week on Gorsuch, the Colorado judge nominated to replace the late Justice Antonin Scalia. Republicans have only 52 seats, so they need Democrats to help end a filibuster. But many Democrats, including Pennsylvania's Sen. Bob Casey, have said they will vote to stop the nomination from proceeding to a final vote.

“We have to do what we have to do to confirm Neil Gorsuch," Toomey said. "… We’re not going to go for four or eight years with a dwindling number of justices. If that means we have to change the Senate rules, it will be a very sad day for the Senate, but if that’s what it takes, that’s what it takes.”

Citing Gorsuch’s temperament, education, and experience, and the fact that he was confirmed in 2006 to a federal appellate court without a single Democratic objection, Toomey added that if Democrats won’t confirm Gorsuch, they won’t confirm anyone.

The rules change has long been forecast. Once the filibuster is eliminated for judges, many believe, it may be a only matter of time before it is wiped out for legislation, too, allowing the majority at any given time to run rampant.

Both parties have threatened the move while they have held the Senate -- and both have decried it while in the minority -- but tensions have ratcheted up in recent years and many senators believe this is the moment the dam breaks.

Democrats are still seething over Republicans’ refusal last year to hold even a hearing on then-President Barack Obama’s nominee to fill the same seat, Judge Merrick Garland. Republicans are angry that in 2013 Democrats changed the rules to prevent Republicans from using the filibuster on lower-court nominees.

(Toomey, who helped block Garland but on Wednesday blasted Democratic obstruction, argued that voters had effectively decided on Garland’s fate by electing Trump and leaving the Senate in GOP hands, in part by reelecting Toomey himself.)

Casey said recently that anyone up for a lifetime appointment to the Supreme Court should be able to secure the 60 votes needed to end a filibuster.

Toomey noted that in the past, even fiercely divisive nominees have been allowed to proceed to an up-or-down vote. Justice Clarence Thomas was approved in 1991 with just 52 votes, after Democrats declined to filibuster him.

Republicans threatened to change Senate rules in 2005, but a bipartisan group of senators worked out a compromise to defuse the crisis. Then came Democrats’ rules change in 2013, and late last year the departing Senate Democratic leader, Harry Reid, suggested that his party might invoke the nuclear option if they were to take the White House and Senate and still encounter GOP resistance over Supreme Court nominations.

Some analysts argue that Democrats should allow Gorsuch through to save the filibuster for another fight. But few senators have agreed with that idea.

There’s little appetite for compromise this time around.


You can follow Tamari on Twitter or email him at jtamari@phillynews.com.