Undeterred by its failed effort to stonewall Neil Gorsuch's confirmation to the Supreme Court, the Democratic leadership is going on a full-court press to resist President Trump's nominations for judgeships and FBI director in the Senate. However, if they commit, the party risks losing the moral high ground it hung over the Republican Party's head when Senate Majority Leader Mitch McConnell refused to schedule confirmation hearings for former President Barack Obama's nominee for the Supreme Court, Merrick Garland.
In the clearest symbol yet of the Democrats' coming intransigence was Senate Minority Leader Chuck Schumer, D-N.Y., told CNN's Jake Tapper on Sunday that he "would support" fellow Democratic Sen. Mark Warner's push to hold the not-yet-announced FBI director nominee hostage if the Trump administration doesn't agree to appoint a special prosecutor to investigate potential ties between the Trump campaign and Russia.
There are currently 52 Republicans in the Senate, 46 Democrats and two independents who caucus with the Democrats. If Republicans unite behind a Trump pick to head the FBI, Democrats will have no way to block consideration of the nominee because in 2013 the then-Democratic-led Senate went through with the "nuclear option" on executive branch nominees. This altered the rules to require only a simple majority of 51 senators, instead of 60, to overcome a filibuster.
Acknowledging that his party doesn't have the votes to actually block the FBI nomination, Schumer pressed Republicans to choose country over party. "We're hoping, we're waiting, we understand it's difficult, but I think patriotism and the needs of this country demand it," he said.
Schumer's plea to the GOP isn't without some merit. Some Republicans, like South Carolina Sen. Lindsey Graham, have expressed concern about possible ties between Trump and Russia. The FBI is investigating just that, along with other probes examining more broadly Russian interference in the 2016 election. Trump revealed last week he sent a certified letter from a "prestigious" law firm to Graham to prove he has no financial connections to Russia. That letter has yet to be made public. Meanwhile, Senate Judiciary Chairman Chuck Grassley has said that FBI director must be independent of Trump.
The Democratic blitz to block Trump's eventual FBI pick isn't limited to just the Senate. The leader of the Democratic Party, Chairman Tom Perez, tweeted in no uncertain terms last week that "Until there is an independent special prosecutor investigating the Trump's Russia ties, the Senate should NOT consider a new FBI Director." It would seem placing priority for a special prosecutor also has the backing of the American people. An NBC News/Walls Street Journal poll released Sunday found more than three-quarters of Americans, 78 percent, want an independent commission or special prosecutor to investigate Russian interference, while only 15 percent picked Congress.
The White House also announced 10 judicial nominations last week, adding to the list of nearly a dozen nominees already selected. Trump presently faces 129 judicial vacancies, which are spread across all 11 circuits as well as the D.C. Circuit Court of Appeals, but has yet to see any confirmed by the Senate since Gorsuch was confirmed by the Senate in early April. He officially replaced the late Antonin Scalia the help of three Senate Democrats after McConnell deployed the "nuclear option" for Supreme Court nominees to bypass a successful filibuster.
Though they can no longer use the filibuster, Democrats still can send to the Judiciary Committee a "blue slip" in which senators from the state from which a nominee hails block their progress by objecting to their receiving hearings and markups. While it's not actually a rule, the practice is generally respected.
Already at least one Senate Democrat is looking to test these waters. Sen. Bob Casey, D-Pa., said he has "serious concerns" about the expected nomination of David Porter, who is affiliated with the Federalist Society, to the Third Circuit Court of Appeals, according to a source cited by the Huffington Post.
Two judicial nominees who have already been announced, Michigan Supreme Court Justice Joan Larsen and Minnesota Supreme Court Justice David Stras, are in jeopardy of being challenged by Democrats in their respective states, the Daily Caller notes.
The threat of obstruction also extends to non-judicial branch nominees. Sen. Ron Wyden, D-Ore., vowed to block Sigal Mandelker's nomination to be undersecretary of the treasury for terrorism and financial intelligence until the Treasury Department release documents related to Russia and financial ties to Trump and associates. Last week Warner, D-Va., announced that the intelligence panel, with the support of Republican Chairman Richard Burr, has asked the Treasury Department's Financial Crimes Enforcement Network for records relating to Trump and his associates. Burr would not confirm if this was true.
Republicans too are putting Trump on notice that not all of his nominees are safe if certain conditions aren't met. Grassley is threatening to block the nomination of Courtney Elwood for CIA general counsel to move forward until he gets responses to requests for documents, The Hill reported.
Editor's note: This story has been updated to correct the number of Republicans and Democrats in the Senate.