Top Senate Republicans are drawing a hard line on the Supreme Court, guaranteeing that no matter what tactics Democrats deploy, they will be forced to swallow Donald Trump’s imminent nominee to the high court.

Republicans won’t come out and say it, but there’s an implicit threat in their confidence: If Democrats play things the wrong way, they might find themselves on the wrong end of a legacy-defining change to Senate rules that scraps the chamber’s 60-vote threshold to confirm Supreme Court nominees.


“We’re going to confirm the president’s nominee one way or the other. And there’s an easy way and there’s a hard way,” said Senate Majority Whip John Cornyn (R-Texas). “They just need to accept that reality.”

“The Democrats will not succeed in filibustering a Supreme Court nominee,” said Sen. Ted Cruz, Cornyn’s Texas colleague. “We are going to confirm President Trump’s conservative Supreme Court justices.”

Both Senate leaders, Majority Leader Mitch McConnell and incoming Minority Leader Chuck Schumer, have been mum on the topic. But the debate over whether the supermajority requirement for Supreme Court nominations will disappear is raging in the Democratic and Republican caucuses.

Democrats start from a position of weakness — but with pent-up rage over how McConnell treated President Barack Obama’s nominee, Merrick Garland, who was nominated in February but never got a hearing.





Some Democrats are privately chattering about payback, though the form that would take is unclear. But lawmakers also are cognizant that taking a hard line against Trump off the bat could trigger a rules change that cripples their leverage in the minority. And senior Republican sources said they believe Democrats will allow Trump's initial nominee through — provided the person is not viewed as extreme — and live to fight another day.

If Republicans change the Supreme Court confirmation threshold to a simple majority, Trump could conceivably install even more conservative justices to the Supreme Court with relative ease. Three current justices are in their late 70s or early 80s.

“This is generational. We can debate programs and policies, but the Supreme Court is generational,” said Sen. Debbie Stabenow (D-Mich.). “I hope that people will take it seriously like that. I know I do.”

No matter whom Trump selects, conflict is brewing. McConnell would need at least eight Democrats to clear 60 votes. But even some Democrats representing states that overwhelmingly went for Trump aren’t prepared to say they’ll automatically back his high court nominee.

“I’m going to give them a better break than they gave Merrick Garland,” said Sen. Jon Tester (D-Mont.), who is up for reelection in a conservative state. Asked whether that means he’ll definitely vote for Trump’s nominee to advance over a filibuster, Tester replied: “Hell no. I’m going to make sure the guy or gal is qualified to do the job.”

“It was really pretty horrible what happened to Merrick Garland, so if cooperation means getting a hearing, having a dialogue and getting a vote? I hope so,” said Sen. Heidi Heitkamp (D-N.D.). “You think I’m just going to hand them a vote not knowing who it is?”

For Republicans, the answer is yes. Their preference is to keep the Senate’s rules unchanged — but that will require lots of cooperation from Democrats, many of whom may believe their imperative is to stymie Trump at every turn. And there will be few fights more consequential than the one over the Supreme Court, which just two weeks ago Democrats thought was tilting their way.

Sen. Dianne Feinstein (D-Calif.), the incoming top Democrat on the Judiciary Committee, is taking a confrontational stance toward Trump's nominees, given the treatment of Garland.

“The only way I know how to do things is to have my staff and myself do strict scrutiny. Have the hearings, ask the hard questions, and then make a decision,” Feinstein told reporters on Thursday. "The very disturbing thing has been that Barack Obama has been delayed in filling his top positions and his Cabinet positions. Delay and delay and delay."

But Republicans only need a bare majority to get out of her committee; it’s on the Senate floor where things get tricky.

“Our nominee will go through a Republican committee process, and I think that Democrats should believe we’ll be able to confirm nominees to that court,” said Sen. Roy Blunt of Missouri, a member of GOP leadership.

The era of monumental Senate clashes over the Supreme Court dates to Robert Bork in 1987, then Clarence Thomas a few years later. But the latest chapter began in earnest during the presidency of George W. Bush, when Democrats began blocking the confirmation of Circuit Court nominees.

That crisis was defused by a bipartisan group of senators, but in 2013 the skirmish boiled over into an all-out war over Cabinet confirmations and judicial nominees. Sen. Harry Reid (D-Nev.), then the majority leader, changed the rules to allow all nominees to be confirmed by a simple — except those to the Supreme Court — via the so-called nuclear option, which means changing the rules by a majority vote. Traditionally, it requires 67 votes to change the Senate rules at the beginning of a Congress, but Reid's move in 2013 was executed in the middle of a Congress via a simple majority.

Democrats feared then that watering down the supermajority requirement could later ease the confirmation of anti-abortion nominees. Now they are confronting that very prospect: After setting the precedent of changing Senate rules, there’s little reason to think Republicans wouldn’t do the same if their hand is forced.

“I mean, [Democrats] set the standard,” said Sen. Orrin Hatch (R-Utah), the most senior Republican senator and a former Judiciary chairman. “They really screwed up the rules. Frankly, they did it for pure political purposes. The Republicans are not limited now.”

It’s an open question as to how Democrats will proceed. They’ll be under immense pressure from their political base to reject a nominee perceived as anti-abortion and anti-environment. They’ll also have to weigh whether playing nice on one nominee may give them more leverage to play hardball later on, when Republicans may be sweating their own political future ahead of the 2020 election.

A change to the rules would probably mean more extreme justices from both sides of the political spectrum over time. And Reid, who is retiring, said that Democrats should change the Supreme Court threshold had Clinton won.

Democrats say it’s too early to decide how they’ll proceed. But they admit they’re worried about who Trump will pick and what it will mean for the future of the Senate.

“I’m hearing no passion for trying to make such a fundamental change of taking away the emergency brake of the filibuster,” said Sen. Chris Coons (D-Del.), a member of the Judiciary Committee. “That is going to be forefront in everybody’s minds in the next couple of weeks as we go through a whole series of increasingly concerning announcements” from Trump Tower.

Elana Schor contributed to this report.