SAN FRANCISCO (KTVU/AP) - Republicans and Democrats appear headed on a collision course over President Trump's Supreme Court nominee Neil Gorsuch and it could lead to a profound and historic change in Senate rules, that some fear could lead to even more political polarization.
Democrats announced they have the 41 votes needed to block the Gorsuch confirmation with a filibuster.
Republicans could use the so-called "nuclear option" which would involve changing the Senate rules to allow Gorsuch to win approval with a simple majority instead of a supermajority. Majority Leader Mitch McConnell of Kentucky has vowed Gorsuch will be confirmed Friday.
The nation's bitter partisan divide was evident in the Senate Judiciary Committee's debate Monday.
"He's a picture of the kind of Justice we should have on the Supreme Court," said Senate Judiciary Committee Chairman Chuck Grassley, a Republican from Iowa.
"Based on Judge's Gorsuch's record at the Department of Justice, his tenure on the bench, his appearance before the senate, and his written questions for the record, I cannot support this nomination," said California Senator Dianne Feinstein.
The final vote, eleven to nine along party lines, foreshadows a likely showdown when the vote reaches the full Senate floor.
Gorsuch now counts 55 supporters in the Senate: all 52 Republicans, along with three moderate Democrats from states Trump won last November -- Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana. A fourth Senate Democrat, Michael Bennet from Gorsuch's home state of Colorado, has said he will not join in the filibuster against Gorsuch but has not said how he will vote on final passage.
All 52 Senate Republicans plus 4 Democrats say they'll vote for Gorsuch. Those 56 votes, however fall short of the 60 needed to override a filibuster.
"Clearly, this nominee is out of the mainstream and I will oppose him and use a filibuster, if necessary," said Democratic Senator Richard Blumenthal of Connecticut.
"I'm going to vote to change the rules because I'm not going to be part of a Senate where Democrats get their judges and a Republican can never get theirs," said Senator Lindsey Graham.
Sen. Chris Coons of Delaware became the key 41st vote for the Democrats Monday, declaring during committee debate that Gorsuch's conservative record showed an activist approach to the law and that he evaded questions during his confirmation hearings.
"We are at a historic moment in the history of the United States Senate" due to actions by both parties, Coons said. "We have eroded the process for reaching agreement and dishonored our long traditions of acting above partisanship."
By day's end, 43 Democrats had said they won't support Gorsuch.
"The filibuster goes all the way back to the 19th century," said Henry Brady, Dean of the UC Berkeley Goldman School of Public Policy. Brady says the threat of a filibuster has often meant the majority party must compromise to reach a supermajority vote.
"The idea was there are some things that are so important you just don't want to have the majority make a decision, you want a supermajority," Brady said.
Before 1975, it was even tougher for presidents to get their nominations through because two-thirds of the senators present and voting had to agree to move forward.
Brady says there is a precedent for changing Senate rules, though. It was the Democrats in 2013, who changed the rules on lower court appointees, when Republicans appeared ready to filibuster then-President Obama's nominees. The Supreme Court was exempted as part of a deal bringing along Democrats reluctant to change the rules.
Republicans said then that Democrats would come to regret it.
The partisan divide deepened last year when President Obama nominated Merrick Garland to replace the late Justice Antonin Scalia. Republicans refused to hold any hearings for seven months. Gorsuch's confirmation will also be vindication for McConnell's strategy of refusing to fill Scalia's seat last year, instead leaving it open for the next president, even though few imagined then that that person would be Trump.
Gorsuch will be confirmed "and he should be," the No. 2 Senate Republican, John Cornyn of Texas, said during Monday's debate. "If Judge Gorsuch is unacceptable to our Democratic colleagues, there will never be a nominee by this president that you will find acceptable. Never."
Democrats claim the Republicans' treatment of Garland was worse than anything they ever did or are doing, and with Trump in the White House they are under intense pressure from liberal voters to oppose the president on every front. That gives them very little leeway to let Gorsuch onto the court unchallenged, even though all the current justices were confirmed without filibusters, aside from a half-hearted effort against Justice Samuel Alito.
Several Democrats also say Gorsuch has not done enough to demonstrate his independence from Trump at a time when the president has frequently assailed the judiciary and is embroiled in one controversy after another.
"The independence of our judicial branch has never been more threatened or more important," said Sen. Richard Blumenthal of Connecticut. "The possibility of the Supreme Court needing to enforce a subpoena against the president of the United States is far from idle speculation."
Some point out that Gorsuch would replace the late Antonin Scalia, who was considered one of the most conservative justices, and anyone else President Trump nominates could be equally or more conservative than Gorsuch.
Brady says the nuclear option to eliminate the filibuster could lead to even more polarization in the long-term.
"That means we don't have to have as much compromise with the other side and what we're going to end up with are judges that are more extreme either on the left or right depending upon who's in charge of the Senate and the Presidency," said Brady.
Such a rules change on Supreme Court nominees would be a momentous change for the Senate, which traditionally operates via bipartisanship and consent from all senators. Some believe it could begin to unravel Senate traditions at a hyper-partisan moment in politics and perhaps end up in the complete elimination of the filibuster even for legislation, which would mean an entirely different Senate from the one that's existed for decades.
Senate experts note that the filibuster is not enshrined in the Constitution and filibustering nominees is a relatively recent phenomenon. Cloture -- the procedural motion to end a filibuster -- was attempted for the first time on a nominee in 1968 after President Lyndon Johnson tapped Abe Fortas as chief justice of the U.S., according to the Congressional Research Service. The cloture attempt failed and the nomination was withdrawn.
The list of 42 Democrats and one independent who have announced their opposition to Gorsuch and willingness to block the nominee:
Tammy Baldwin of Wisconsin
Sherrod Brown of Ohio
Tom Carper of Delaware
Bob Casey of Pennsylvania
Kamala Harris of California
Ed Markey of Massachusetts
Jeff Merkley of Oregon
Bernie Sanders of Vermont
Chuck Schumer of New York
Sheldon Whitehouse of Rhode Island
Jack Reed of Rhode Island
Tom Udall of New Mexico
Patty Murray of Washington
Ron Wyden of Oregon
Elizabeth Warren of Massachusetts
Bill Nelson of Florida
Mazie Hirono of Hawaii
Al Franken of Minnesota
Debbie Stabenow of Michigan
Dick Durbin of Illinois
Gary Peters of Michigan
Chris Van Hollen of Maryland
Chris Murphy of Connecticut
Jeanne Shaheen of New Hampshire
Kirsten Gilibrand of New York
Amy Klobuchar of Minnesota
Maggie Hassan of New Hampshire
Tim Kaine of Virginia
Martin Heinrich of New Mexico
Cory Booker of New Jersey
Maria Cantwell of Washington
Catherine Cortez Masto of Nevada
Tammy Duckworth of Illinois
Richard Blumenthal of Connecticut
Brian Schatz of Hawaii
Claire McCaskill of Missouri
Jon Tester of Montana
Dianne Feinstein of California
Mark Warner of Virginia
Patrick Leahy of Vermont
Chris Coons of Delaware
Ben Cardin of Maryland
Bob Menendez of New Jersey
Democrats supporting Gorsuch:
Heidi Heitkamp of North Dakota
Joe Manchin of West Virginia
Joe Donnelly of Indiana
Michael Bennet of Colorado says he will vote for cloture, no word on whether he will support or oppose the nominee
Angus King of Maine