Senate Democrats got into several testy exchanges with Judge Neil Gorsuch during Tuesday’s 11-hour hearing, which could end up being their opening move in a strategy that calls for doing anything it takes to keep him off the Supreme Court.
With 48 Senate seats, Democrats can’t defeat Gorsuch on an up-or-down confirmation vote. But they do have the votes to filibuster his nomination, in effect forcing a 60-vote threshold Republicans cannot meet, and that’s a step many on the left are encouraging Democrats to take.
“We want all senators to vote against Judge Gorsuch, including all procedural votes,” said Shin Inouye, communications director for the progressive Leadership Conference on Civil and Human Rights.
“They’re trying to build a case for the heightened level of partisanship their base is asking for,” said Carrie Severino, chief counsel and policy director for the conservative Judicial Crisis Network, of the Democrats who pressed Gorsuch hard during his confirmation hearings.
But Democrats have some practical reasons to be cautious. Gorsuch is conservative, but he isn’t in involved in any scandals, there are no concerns about his qualifications, and he has received positive reviews for his performance at the hearings.
Most importantly, he does not alter the ideological balance on the court, which means giving him the seat doesn’t change the status quo for Democrats. That raises a real question: is it worth it for Democrats to filibuster the nomination?
A major factor, as always, is politics. There are ten Democratic senators up for re-election next year in states President Trump won who might not benefit from this fight, which would be a declaration to Trump that they aren’t going to let any of his picks through.
“If the Democrats won’t give the president 60 votes for Neil Gorsuch, then there is no Republican Supreme Court nominee they will ever support,” said Leonard Leo, who is on leave as executive vice president at the conservative Federalist Society to advise the president about the Supreme Court.
Another problem for Democrats is a filibuster might only give them a temporary win. If they filibuster Gorsuch, Republicans could deploy the nuclear option and take away this procedural tool. That would put Democrats at a disadvantage if another Supreme Court vacancy — potentially changing the court’s balance — occurred while they were in the minority.
But Democrats have a powerful reason to ignore these practical concerns: a liberal base that wants to fight all things Trump and keep conservatives like Gorsuch off the highest court.
“The Democratic base is putting a lot of pressure on Schumer to delay Gorsuch’s nomination as long as he can,” said Brad Bannon, a Democratic strategist. “A lot of Democrats feel very put out by the treatment of Merrick Garland. They don’t see why they should make life easy for Republicans.”
Senate Republicans blocked President Obama’s nomination of Garland to the Supreme Court, refusing to even hold hearings for him on the grounds that Scalia’s seat should not be filled until after a new president was elected. Between the failure to consider Garland, the president’s popular vote loss and allegations of collusion between the Trump campaign and Russia — which FBI Director James Comey confirmed was being investigated by his agency Monday — some liberal Democrats consider it a “stolen seat.”
“The legitimacy of Trump’s presidency and his entire administration is in question,” stated an email to MoveOn.org supporters. “And with so much yet unknown, Congress cannot consider Trump’s agenda, especially the lifetime appointment of Neil Gorsuch.”
Senate Minority Leader Chuck Schumer, D-N.Y., endorsed this line of thinking Tuesday. “There’s a cloud now hanging over the head of the president, and while that’s happening — to have a lifetime appointment made by this president seems very unseemly, and there ought to be a delay,” Schumer told reporters.
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Newly elected Democratic National Committee Chairman Thomas Perez also linked the Supreme Court seat to Russia and said Democrats should extend Gorsuch no more courtesy than Republicans afforded Garland.
“Leadership in the Senate is determined to show Democratic voters they are fighting as hard as they can,” Bannon said. He noted that Russia controversy has stiffed Democratic resolve.
“The senators know that Democratic activists are paying attention even if no one else is,” he added. “Part of it is to make a point about Trump’s illegitimacy.”
Their first step is to raise questions about Gorsuch. But on Tuesday, only a few Democratic members of the Senate Judiciary Committee were able to land blows on Gorsuch.
Sen. Al Franken, D-Minn., portrayed him as a loyal Republican foot soldier who would do the Trump administration’s bidding on the court. Sen. Sheldon Whitehouse, D-R.I., challenged Gorsuch to ask the anonymous financial supporters of a campaign backing the judge’s Supreme Court nomination to reveal themselves.
“You could ask right now as a matter of courtesy, as a matter of respect for the process that anybody funding this should declare themselves right now so we can evaluate who is behind this effort,” Whitehouse said.
Sen. Lindsey Graham, R-S.C., criticized Democrats who were preemptively opposed to Gorsuch’s nomination even as he seemed to defend judicial filibusters in principle.
“I believe that vote, Nov. 21, 2013, forever changed the way the Senate works,” Graham said of former Senate Democratic Leader Harry Reid’s move to eliminate the filibuster for judges below the Supreme Court. He said that move by Democrats would do “long term damage to the judiciary as a whole,” and said of Reid’s move, “the most ideological have been rewarded.”
“I’m not here to say our party is without fault,” he added. “I’m here to say that on November 2013 the game has changed, I think in a way that Mr. [Alexander] Hamilton would be very disappointed.”
Some Democrats have expressed reservations about full-throated opposition to Gorsuch, who was unanimously confirmed to his current judgeship in 2006.
“The base wants me to reject him out of hand,” Senate Minority Whip Dick Durbin, D-Ill., told the New York Times last month. “I don’t think that serves the country well.”
“We’ve had a handful of Democratic senators who’ve already announced they’re voting no,” he added. “Many people in some parts of the base think we should all make that announcement. I just don’t think that’s appropriate.”
But the past month of Trump-related controversies may have strengthened the hand of lawmakers like Sen. Jeff Merkley, D-Ore., who was among the first to threaten a filibuster to prevent a “stolen” Supreme Court seat.
In 2006, only four Democratic senators voted to confirm Samuel Alito to the Supreme Court. But many more voted for cloture, which allowed the final vote to happen. Only 25 Democrats supported a filibuster of Alito, including Schumer. Then-Sens. Obama and Hillary Clinton also voted to filibuster Alito.
“There were more institutionalists in the Senate then,” Severino said. “I’m not sure there are as many now.”
Obama later expressed regret for his vote against cloture on Alito when he was trying to get Garland confirmed.
The partisan battles over judicial confirmations have escalated since not a single Democrat voted against Scalia in 1986. Democrats rejected Robert Bork’s Supreme Court nomination in a contentious fight in 1987 and nearly derailed Clarence Thomas with Anita Hill’s allegations in 1991. Half the Democrats in the Senate voted against John Roberts’ nomination for chief justice in 2005.
Republicans mostly supported President Bill Clinton’s two Supreme Court nominations, but only a handful voted to confirm Obama’s successful nominees Sonia Sotomayor and Elena Kagan before shutting out Garland entirely.
“There are no safe issues anymore,” Bannon said as Democrats contemplate whether to escalate another Supreme Court nomination fight.
