Inside the failed covert mission to save the filibuster

A week before Republicans gutted the filibuster to put Neil Gorsuch on the Supreme Court, nine senators gathered in John McCain’s office to see whether they could save the Senate from spiraling further into disrepair.

In the room were centrists like Sens. Chris Coons (D-Del.) and Susan Collins (R-Maine), who spearheaded the effort to recruit enough senators to avoid the collision course their party leaders were on, as well as some lawmakers who had distanced themselves from such talks but were willing to listen, such as Sen. Bob Corker (R-Tenn.).

Aides paced outside during the 30-minute midday meeting, hoping to keep away prying reporters. For several weeks, Coons had been asking himself whether the long-running tit-for-tat between the two parties over judicial nominations would ever end.

“Are we just going to sit here and pee on each others’ shoes for the rest of our adult lives?” Coons said of what spurred his bid to try and save the filibuster. “How does this ever get better?”

The second-term senator circulated a proposal calling on senators in both parties to admit they’d abused the Senate rules to the detriment of the institution — and commit to not do so again in the future. It was designed to be painful and cathartic: Republicans would express regret for blocking Merrick Garland last year; Democrats would do the same for a 2013 rules change that set the stage for this year’s nuclear option.

But clinching an agreement on how Democrats would advance Gorsuch while preserving the option of blocking a nominee for the next vacancy proved impossible. The fact that the parties clashed so severely over whether Gorsuch was even a mainstream jurist undermined any confidence that senators could hold to a pact covering President Donald Trump’s next Supreme Court pick.

“They had a hard time trusting that we wouldn’t just filibuster the next nominee,” Coons said hours after giving up on a deal. “We had a hard time trusting that they wouldn’t just break the rules on the next nominee.”

This story is based on interviews with more than 20 senators and Capitol Hill aides, some of whom differed on just how close the working group came to saving the Supreme Court filibuster. But on one point, everyone agrees: The gap between the two parties was too broad and mistrust too baked in after 15 years of nomination wars for a bipartisan “gang” to prevent the Senate from drifting further away from its collaborative roots.

By the time McCain convened the small bipartisan group in his office on March 30, it was clear where the Senate was heading.

Liberal activists had long been furious that most Democrats had failed to mount a compelling case against Gorsuch, let alone promise a filibuster. That all changed after the 49-year-old federal judge was less than forthcoming, in the Democrats’ view, about his judicial philosophy during confirmation hearings.

After remaining largely mum about their strategy, Minority Leader Chuck Schumer (D.N.Y.) and his troops came out with guns blazing: Schumer predicted that Gorsuch would fail to secure the 60 votes he needed to advance to an up-or-down vote; Republicans were just as confident they had the 51 votes to change the rules in response.

So McCain, a proud Senate institutionalist, decided to call a last-ditch meeting to see if anything could be done. His fear, shared by others, was that if the 60-vote filibuster for Supreme Court nominees went, the legislative filibuster would inevitably fall next.

When they received the invitation from McCain, senators weren’t quite sure what to expect, or even who would be there. In addition to Coons, McCain, Corker and Collins, there were Sens. Joe Manchin (D-W.Va.), Michael Bennet (D-Colo.), Thom Tillis (R-N.C.), Ron Johnson (R-Wis.) and Angus King (I-Maine). The "gang," in other words, was almost perfectly balanced: four Republicans, four Democrats, and an independent who caucuses with Democrats.

The group included some surprising figures.

McCain asked Johnson, a tea party Republican who narrowly won reelection last year, to join when the two men traveled together to the Brussels Forum late last month. Asked by attendees why he was there, Johnson quipped he was representing the “wacko birds,” a reference to McCain’s put-down in 2013 of far-right senators.

Bennet, meanwhile, had been agonizing for weeks about the looming confrontation over the nuclear option. The Colorado senator, who introduced Gorsuch at his confirmation hearings, met repeatedly with Schumer to make the case that Democrats should go all out on the next Supreme Court vacancy, not this one. But Bennet remained under the radar, as did Tillis, a former speaker of the House in North Carolina accustomed to corralling warring factions.

“Nobody, actually, for two weeks knew that I was involved,” Tillis said. “It was awesome.”

Tillis had contacted eight to 10 Democrats to see whether they’d be interested in at least talking about a compromise. Coons spoke to 15 Democrats, who kept dropping in and out of the group.

Corker, however, tapped out only hours after the meeting. He told the group in an email that night that, in his view, “the only path forward is for the Democrats not to filibuster.”

His position left practically no room for a compromise, but other senators kept at it, reaching out beyond the nine original meeting attendees.

The GOP needed eight Democrats in order to break a filibuster of Gorsuch.

“If we have eight to 10 votes that will vote for [Gorsuch] … then do we have at least four or more Republicans that will say under no condition, would they vote for a nuclear option?” Manchin said.

But while Coons tried to find those eight Democrats, he kept getting stuffed by people who would be integral to any deal. Sen. Jon Tester (D-Mont.), a moderate up for reelection in a state where Trump is popular, told Coons two weeks ago: “Look, Supreme Court is too important to me. I can’t be cutting a deal.”

Indeed, the same hurdles kept surfacing.

Republicans believed they had already compromised by recommending that Trump pick Gorsuch, who in their view was as mainstream a nominee as the president would ever put forward.

“The Republicans were like: ‘How can you filibuster this guy, he’s a Boy Scout?’” King said. “And the Democrats [were] saying, ‘Wow, this guy’s pretty worrisome.’”

The GOP senators also couldn’t fathom why Democrats chose Gorsuch — a polished jurist who, as Antonin Scalia’s replacement, wouldn’t tip the ideological balance of the court — as the vacancy to fight.

The moderate Collins said she was bewildered by Democrats’ view of Gorsuch as extreme. “I don’t know how they could conclude that," she said. “I truly don’t.”

Then there was the fact that neither party leader wanted any part of the discussions.

In fact, the entire effort was intended to circumvent the entrenched positions of Senate Majority Leader Mitch McConnell (R-Ky.) and Schumer — not to mention interest groups on both ends of the spectrum. The two leaders never talked seriously about avoiding the nuclear option, and opposed any bipartisan attempt to head it off.

“I was certainly discouraging making a deal. Because I couldn’t think of a deal that would be any good,” McConnell said in an interview Friday. Asked why he never met with Schumer on the subject, he replied: “What was there to meet about?”

“The only way this was going to happen was if the majority leader had interest,” said Sen. Ben Cardin (D-Md.). “And I didn’t see any.”

Nonetheless, Coons and Collins continued trying to strike a deal until Wednesday, one day before Democrats blocked Gorsuch and Republicans responded by unilaterally changing the rules.

“We kept exchanging language over the weekend,” Collins recalled. “Literally, I got one offer from [Coons] at 12:15 a.m.”

By then, almost everyone else had already given up. There was no real debate on the Senate floor. No one tried to call a special bipartisan meeting in the Old Senate Chamber, where past confrontations had been defused.

In the end, nearly everyone retreated into their partisan corners.

Just four Democrats lined up to break the filibuster. No Republicans opposed the nuclear option. Even two of the would-be "gang" leaders fell in line: Coons joined the Democratic filibuster, while Collins backed the rules change.

The failure has led to some self-reflection among senators over their failed attempt.

Bennet said Democrats were wrong to change the rules for nearly all nominations in 2013, a rare admission of remorse read into the Senate record.

McCain and Sen. Lindsey Graham (R-S.C.) also went to the Senate floor on Thursday to express their displeasure about a rules change that they had just supported.

“It’s too bad," McCain said in an interview. "I thought [the bipartisan effort] was worth trying. This is a body blow to the entire institution."

Others are bracing for what might come next.

Corker believes the legislative filibuster is now on the line, given how little public outrage there was this time. "Sanitary" was how he described the process that led to the end of the 60-vote filibuster for Supreme Court nominees.

Collins is already scrambling to round up commitments from senators to never touch the chamber’s 60-vote threshold for advancing legislation. Sixty-one lawmakers signed a letter to that effect, but it’s difficult to predict what extraordinary circumstances or outside pressures might prompt a reassessment.

Coons, for his part, is beating himself up that he didn’t get started sooner. He recalls helping his 16-year-old daughter Maggie with her homework until midnight recently, and simultaneously thinking he should be working the phones to save the filibuster.

If only, he waxes now, he’d had a little more time.

“We needed a longer runway to land this plane,” Coons said. “We needed more time together.”

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