WASHINGTON — With Democrats and Republicans on a collision course towards the so-called “nuclear option,” some senators on both sides of the aisle are holding private conversations to avert the rule change.
The maneuver would help Republicans end a Democratic filibuster next week over Supreme Court nominee Neil Gorsuch. But it would dramatically change Senate rules to essentially nix the filibuster for future nominees, which could come back to haunt Republicans down the road if they fall back into the minority.
“We’re hoping that we don’t have to do it,” Sen. Jeff Flake, R-Arizona, said about the nuclear option.
Speaking to reporters, Flake confirmed he was part of the informal talks but declined to give any more information, such as what each side would have to give up in a compromise.
“It’s tough enough without talking about it (publicly),” he said.
Sen. Patrick Leahy, who has yet to say whether he’ll join Democrats in the filibuster, would not discuss the content of the conversations but appeared to confirm their existence to reporters.
“I don’t talk about private discussions,” Leahy, a Vermont Democrat, said when asked about the talks.
It’s not entirely clear who all is involved in the discussions and whether there is potential for a deal. Along with Flake, members who’ve expressed interest in wanting to find a way to avert a rule change include Republicans Sens. Bob Corker of Tennessee and John McCain of Arizona, while Democrats include Sens. Joe Manchin of West Virginia, Chris Coons of Delaware and Ben Cardin of Maryland.
Speaking to CNN, McCain argued the talks are so minimal that they don’t even amount to negotiations.
“No negotiations. No gang. Just some conversation among some of my friends,” he said. “But certainly not a gang. Certainly not even negotiations. Just conversation.”
McCain did not appear optimistic about a potential compromise.
“There’s always hope,” he said. “But it’s very unlikely.”
Republicans need eight Democrats to join them to end the expected filibuster.
So far only two — Manchin and Sen. Heidi Heitkamp of North Dakota — have firmly stated they will vote with Republicans to advance Gorsuch’s nomination. They also plan to vote for his final confirmation in the end.
More than half of the Democratic caucus has already said they will take part in the filibuster, while close to a dozen are still undecided.
“Nobody doubts that (Majority Leader Mitch) McConnell will use the nuclear option,” said one Democratic aide. “It’s obvious where this train is headed, and there are members who want to at least talk to each other about what could be done to avoid nuking the filibuster, because once it’s gone, it’s gone.”
It’s not just Democrats who are expressing frustration over the nuclear option. Republicans as well have shown reluctance about using it, but they feel it’s their only way to get Gorsuch confirmed, given the Democratic filibuster.
“I don’t think we have a choice,” said Sen. Mike Rounds, R-South Dakota. “It’s very unfortunate. I think it turns our stomach.”
They also point to then-Senate Majority Leader Harry Reid’s use of the nuclear option in 2013 as a precedent-setting decision. Reid invoked it to lower the cloture threshold to 51 from 60 for lower-court judges, but not for Supreme Court justices or legislation. If McConnell lowers it for the Supreme Court, many are concerned it’s a slippery slope to lowering the threshold for legislation.
Corker argued both parties are to blame.
“It’s both sides that are taking us to this place. We will end up with Reid breaking the rules and changing the rules, McConnell breaking the rules and changing the rules, it’ll just take one tough legislative issue coming up and somebody else will do it,” he told reporters. “I think we all know that’s where we’re headed.”
Such talks can be risky and complicated. Republican Sen. Lindsey Graham, who has negotiated resolutions during past eruptions over judicial nominations, said he thinks the rule change would be “bad for the Senate.” But he has no plans of getting involved in the talks and is prepared to support the nuclear option.
“I’ve done this twice and been burned twice. Seems to me every time a Republican gets in charge we have a blow up,” he said. “I told you once they changed the rules for the lower court, it was just a matter of time.”