Here's the danger of Trump's call to "go nuclear" if Democrats hold up his SCOTUS pick
President Donald Trump now has the launch codes — but on Wednesday, he talked up going nuclear in a whole different way.
Trump endorsed having the Senate use the so-called "nuclear option" to push through his nomination of judge Neil Gorsuch to the Supreme Court if he can't get the votes.
Senate confirmation of Gorsuch, a conservative Court of Appeals jurist who would replace the late Justice Antonin Scalia, would typically require 60 votes. A rules change, if Senate Majority Leader Mitch McConnell (R-Ky.) went for one, could lower that to a simple majority.
Trump would support the move if Democrats try to stall, he said.
"If we end up with that gridlock, I would say, 'If you can, Mitch, go nuclear,'" Trump said at the White House. "Because that would be an absolute shame if a man of this quality was put up to that neglect. I would say it's up to Mitch, but I would say, 'Go for it."
In the hyperpartisan climate created by Trump's election and the controversial executive orders he's signed within days of taking the oath, the mechanics Gorsuch's nomination will prove a test of the government's direction as much as his appointment could influence the tenor of the court.
Use of the nuclear option wouldn't be unprecedented: As Marketwatch noted,
"Democrats under then-Senate Majority Leader Harry Reid first resorted to it in 2013 to make it easier for President Barack Obama to replace cabinet members or federal judges below the Supreme Court level."
In terms of pure politics, Norman Ornstein, a resident scholar at the American Enterprise Institute, said when it comes to actually triggering the nuclear option "the timing is uncertain [and] it could be that McConnell will let it go for several months" — if only to hold the threat over the heads of Democrats who are up for re-election in red states in 2018.
But deploying the nuclear option is really a story about justice, capital J, and not only about a single justice, said Joshua Huder, a senior fellow at the Government Affairs Institute at Georgetown University.
"There are potentially enormous effects from this sort of change," Huder said in a phone interview. "If they were to go nuclear on Supreme Court nominations it could mean the absolute downfall of moderate [justices]."
Gorsuch has been hailed by conservatives as a highly qualified, learned judge who would continue to serve as a strict constructionist if elevated to the high court. His critics say his appointment could endanger reproductive rights, imperil LGBTQ Americans' freedoms and tilt the court against organized labor.
In confirmations and all other lawmaking, "The entire culture of the Senate is built around bringing the two parties together for consensus legislating," Huder said.
"Partisanship and polarization has disrupted this sense of compromise to a very significant degree: Even in a unified [Republican] Congress, we still see routine business unable to be done," he said. "So imagine this also infecting the judicial branch, the courts."
The Supreme Court is currently split between four conservative and four liberal-leaning justices. The jurists' lifetime appointments are supposed to insulate the court from the pendulum swings of electoral politics.
If loopholes like the nuclear option become a standard alternative to Senate compromise, it could undermine the function of the government, Huder said.
"If the courts are undoing everything the elected branches of government are doing based on ideological principles and not jurisprudence, we have a problem," he said.
"The scariest possible scenario is that you have a third branch of government that is undoing the other branches of government in a nonelected position that's good for life."