Neil Gorsuch thinks that justices interpret laws, but don’t make them. On this, he agrees with the Constitution. That gives Democrats enough reason to oppose the well-qualified nominee. President Trump’s nominee to replace the late Antonin Scalia on the Supreme Court, he’s scheduled for a confirmation vote in the Senate this Friday.

The Democrats are also still angry that the Republicans refused to vote on President Obama’s last nominee, Merrick Garland. Some feel that Gorsuch may get a seat he has no right to.

Democratic leaders threaten to filibuster the nomination to keep it from coming to a vote. They have just enough votes votes (41) to do it. Traditionally, the Senate has required 60 votes to approve a justice. The Republicans can change the rules to require a simple majority, the so-called “nuclear option.” They have the votes to do it if they have to.

They have enough votes — 55 — to confirm Gorsuch. All 52 Senate Republicans support him, plus at least three moderate Democrats.

What will happen? Has it happened before?

Perhaps the Democrats hope that Republicans don’t have even 51 votes to defeat a filibuster. Some Republicans do think the nuclear option a bad idea and may vote against it. Perhaps Senate Minority Leader Chuck Schumer wan a massive confrontation with Republicans. The party can use it to raise money from the party’s base and get voters energized for the mid-term elections.

Even if the Senate doesn’t vote, it is doubtful Trump would withdraw the nomination. He can wait for a vote. Democrats in red areas that went for Trump may want to give up the filibuster. Republican seeking reelection may eventually be forced to accept the nuclear option.

As much as the press and the Democrats complain about the nuclear option, they’ve used it themselves. In 2013, then-Senate Majority Leader Harry Reid (D-Nev.) changed the rules for confirming federal district court and circuit court judges.

This allowed Democrats to push through a large number of Obama’s judicial nominees. It transformed the conservative United States Court of Appeals for the Fourth Circuit into one of the most liberal circuits.

All Eyes on McConnell

All eyes are on Senate Majority Leader Mitch McConnell. He controls the rules. While he has not stood firm on some issues important to Republicans in the past, signs show he may this time.

He has vowed that Gorsuch will be confirmed on Friday. He has not said whether he will use the nuclear option. But he held firm and prevented Garland from coming to a vote. That fact — surprising to many — is a good indication he may resort to the maneuver if necessary.

The Senate does not need to keep the filibuster. There’s no rule against the “nuclear option.” The requirement that a nomination receive 60 votes is merely a Senate rule. The Constitution provides, “Each House may determine the rules of its proceedings.” If the Republicans believe Democrats abuse the rules, as many Republicans do, they can change them.

The Republicans hold one other card. They could strictly enforce Rule XIX (the two-speech rule) on the Senate floor. It would require the Senate to remain in the same legislative “day” until the filibustering members have used up their two chances to speak. The filibuster would end when no more members could speak.

Unwise to Filibuster

Democrats might be wise not to filibuster Gorsuch. If the nuclear option is invoked, it will apply to all judicial nominations going forward. As The Stream’s John Zmirak observes, that change would make it much easier to tip the balance on the Supreme Court to the right.

Harvard Law School Professor Noah Feldman agrees. A liberal, he warns the Democrats to save the filibuster option for a “nominee who was truly terrible, rather than using it on a well-qualified nominee.”

Leftist justices Ruth Bader Ginsberg and Stephen Breyer are 84 and 78 respectively. Swing vote Anthony Kennedy is 80. At least one will probably retire while Trump is president. All three might retire if Trump serves two terms.

Zmirak says we should thank Schumer if Democrats filibuster. “He has guaranteed that Trump’s next appointment will be more like Ted Cruz or Jeff Sessions,” he writes, “than David Souter or Anthony Kennedy.”