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The Globe and Mail

Gorsuch battle pulls back the curtain on demise of U.S. Senate

The battle over the confirmation of Neil Gorsuch to the United States Supreme Court has shattered the quiet, courtly atmosphere of the Senate – and before the conflict is completed Friday, the chamber's ancient rules and its storied, cultivated sense of respectful deliberation will likely be in tatters.

Much more than the composition of America's highest court is at stake in this week's floor debate, which already has included an all-night talk-a-thon by an Oregon Democrat vowing to speak "as long as I'm able." But even before Senator Jeff Merkley, a logger's son who once led a program to recruit gang members to build homes, took to the Senate floor early Tuesday evening, there was a deep sense of crisis in the chamber, where lawmakers' personal prerogatives are not only recognized but also nurtured; where the rights of the individual sometimes trump the rights of the majority; and where tranquil, sometimes sleepy, deliberation is seldom interrupted by outside forces, including the ticking of the clock.

For subscribers: Trump's Supreme Court pick Neil Gorsuch may be most traditional choice he's made

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No longer. The other day, an 83-year-old Republican senator known for his refined diction and polished demeanour, Orrin Hatch of Utah, described the Democrats' opposition to Mr. Gorsuch as "stupid," a word seldom heard among members of a body where disparaging characterizations of colleagues are not only discouraged but actually banned. A 77-year-old Democrat who has been in office for 42 years and is known for his New England understatement, Patrick Leahy of Vermont, accused the Senate majority leader, the Kentucky Republican Mitch McConnell, of "forever damaging the United States Senate." In truth, the decline of the Senate didn't begin this week, or last year, when Republicans refused even to hold hearings on Merrick Garland, Barack Obama's selection for the vacancy created by the death of Justice Antonin Scalia.

"This week, we reached the bottom of a long decline," said Ira Shapiro, author of The Last Great Senate, a chronicle of the chamber in the 1960s and 1970s. "It has failed to handle this most important issue of judicial appointments. This is a far cry from the glory days of the Senate as recently as the late 1970s."

Ordinarily the addition of a new member of the Supreme Court transforms the ideology and chemistry of the body, which has the power to overturn congressional initiatives and to check the power of the White House and the executive branch. Not so in the case of Mr. Gorsuch, who would merely replace a conservative who believed in a strict construction of the U.S. Constitution, restoring the balance of the high court when Mr. Scalia was still alive, rather than altering it.

But Mr. Gorsuch's journey from a Denver courthouse to the Supreme Court, only a block from the Capitol, has had a profound effect on the Senate, which sits just across First Street in northeast Washington.

The Democrats are responding to the nomination with a filibuster, a time-honoured Senate tradition designed to talk a nomination or a legislative initiative to death and a colourful manoeuvre used in the past by lawmakers opposed to civil-rights bills. The longest filibuster in history was undertaken by the conservative J. Strom Thurmond of South Carolina, a confirmed segregationist, who thundered away for 24 hours and 16 minutes against the civil-rights bill of 1957. At one point he was so desperate to keep his rhetorical marathon going that he began reading out of the District of Columbia phone book.

No one expected a similar directory-assistance diversion this week, in part because the Senate has refined its filibuster rules to make the delaying tactic more efficient. Mr. Merkley's marathon peroration (15 hours and 28 minutes) won surprised but solid support among his colleagues; Democrat Elizabeth Warren of Massachusetts, a leading Senate liberal, tweeted, "Go, @SenJeffMerkley, Go! #StopGorsuch #HoldTheFloor."

But the Republican majority is vowing to change the Senate rules to eliminate the 60-vote barrier required to stop a filibuster and to permit Supreme Court nominations to pass with a simple 50-vote majority.

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The Republicans have 53 members in the Senate, and so they are virtually assured of winning approval for Mr. Gorsuch, 49 years old, to join the Supreme Court.

The effort to permit Supreme Court nominees to be approved by a simple majority is known as the "nuclear option" and is deeply controversial, for the Senate, which makes its own rules and where daily operations are not governed by the Constitution, is a body ordinarily more interested in cultivating its traditions than obliterating them.

Lawmakers on both sides acknowledge that the 60-vote barrier has served the Senate well for decades, for the burden of winning five dozen votes tends to moderate legislation, an appropriate function for a body that was designed to promote moderation.

According to legend, Thomas Jefferson, who had been in France during the drafting of the Constitution, asked George Washington over breakfast why the founding fathers had created a second legislative chamber. "Why," asked Mr. Washington, "did you just now pour that coffee into your saucer, before drinking?" Mr. Jefferson answered: "To cool it," which prompted Mr. Washington to respond, "We pour our legislation into the senatorial saucer to cool it."

But the new rules for the senatorial saucer would heat things up rather than cool them down, as they would permit presidents with party majorities in the Senate to nominate Supreme Court justices out of the mainstream – the kind of worry shared by all minorities but a threat that majorities tend to minimize; until, of course, the political balance of power in the chamber shifts.

In any case, the partisan combat over Mr. Gorsuch is itself a reflection of the times. With some exceptions, particularly in the Richard Nixon and Ronald Reagan years, Supreme Court nominees won easy confirmation. Even Mr. Scalia, the conservative avatar whom Mr. Gorsuch has been selected to replace, was confirmed by a 98-0 vote in 1986; none of the 47 Democrats in the chamber opposed him.

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But that nonpartisanship was shattered by the Republicans' refusal even to hold hearings on Mr. Obama's high-court nominee. That prompted Democratic anger that takes the form of this week's filibuster vow, which in turn has prompted talk of the "nuclear option." In politics, as in wartime gamesmanship, when one thing leads to another, the consequences are rarely predictable, and even more rarely positive.

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