Updated at 5:45 p.m. ET
On the final day of the confirmation hearings for Judge Neil Gorsuch, the Senate Democratic leader announced his opposition to the Supreme Court nominee.
In a speech on the Senate floor, Chuck Schumer said Gorsuch “will have to earn 60 votes for confirmation,” setting up a showdown with Republican leaders who may attempt to change Senate rules.
If Gorsuch “cannot earn 60 votes, a bar met by each of President Obama’s nominees and George Bush’s last two nominees, the answer isn’t to change the rules,” Schumer said. “It’s to change the nominee.”
Democrats changed Senate rules in 2013 to require a simple majority on most presidential nominees, but they left in place the supermajority requirement for Supreme Court nominees.
Republicans control 52 Senate seats and would need eight Democrats to join them to move Gorsuch’s nomination forward under current Senate rules. Short of that, Republican Senate leaders may trigger the so-called nuclear option, changing the rules to allow a simple majority to proceed.
The Gorsuch nomination has put Democrats in an excruciatingly difficult position. They do not have the votes to vote down the Trump nominee outright, as they are a minority in the Senate. But they are being pressed hard by liberal groups and their base to do the impossible — stop Gorsuch. The task is impossible because Senate Majority Leader Mitch McConnell has made clear that if there is a filibuster, Republicans will change the Senate rules, just as the Democrats did for lower court judges in 2013 when they were in the majority.
Senate Democrats’ essential bind is this: They can mount a filibuster of Gorsuch because Republicans don’t have 60 votes to put an end to any filibuster. But if Democrats were to do so, then McConnell could simply change Senate rules and lower the threshold for moving the nomination forward. To change the rules McConnell would need only 51 votes, and the Senate Republican caucus has 52 members.
In short, the Democrats have few cards to play, and several Democratic senators and their aides say that Schumer’s filibuster announcement was an attempt to strengthen his hand in negotiations with McConnell.
Democrats are seeking a face-saving way to oppose Gorsuch, knowing they cannot defeat him. But when McConnell announced this week that he intended to get Gorsuch confirmed by the Senate’s Easter recess on April 7, that was a clock that forced the Democrats’ hand.
An April 7 deadline does not allow time for more than a few days of debate once the nomination is sent to the Senate floor after a committee vote on April 3, nor does it allow time for more than one vote to cut off debate, known as a cloture vote.
So, either the Democrats have to alienate their own base by casting enough votes to kill their own filibuster, or the likelihood is that Republicans will change the rules to get rid of the filibuster on Supreme Court nominations. And Democrats would dearly like to preserve that tool, knowing that there is a strong possibility there will be at least one more Supreme Court vacancy during the Trump presidency.
Democratic sources say the leadership would not mind losing the cloture vote, but they would have to lose eight of their 48 members to do that. In days gone by, it would have been easy for senators to say, in essence, that they will not vote to continue a filibuster, that the nominee deserves an up-or-down vote. But as one Democrat put it, “This place is so polarized right now, and our constituents are so polarized, it’s hard to sell that.”
There is, of course, the possibility of a deal. Among the proposals offered by Democrats is an agreement to vote on Gorsuch if Republicans would agree to preserve the filibuster for the next high court vacancy, should it occur. Sources say that offer was immediately rejected.
There are still some other deal permutations possible. Some Democrats would be willing to vote to end the filibuster on a second cloture vote, which in the past has been common, to allow more time for debate. Some would even agree to forgo a filibuster if the vote on Gorsuch is scheduled after the Easter recess later in April. But they say that so far McConnell has not been interested.
The Republican leader has been a tough advocate of using judgeships to bolster the Republican vote. In 2013 when Democrats were in despair over GOP delaying tactics on lower court judgeships, Sen. John McCain worked out a deal with them to avoid changing the filibuster rule. The deal centered on three vacancies on the U.S. Court of Appeals for the District of Columbia Circuit. President Obama had nominated three people for those vacancies, and all had cleared the Senate Judiciary Committee. Under the deal worked out with McCain, the Democrats would forgo a change in the filibuster rule if the Republicans would allow a vote on one of those nominees. McCain brought the deal to the Republican caucus. But it was rejected, whereupon the Democrats voted to get rid of the filibuster for lower court judges and executive branch nominees.
Schumer said Gorsuch “was unable to sufficiently convince me he’d be an independent check” on President Trump. He said Gorsuch was not “a neutral legal mind, but someone with a deep-seated conservative ideology.”
Progressive groups have been urging Democrats to uniformly oppose all of Trump’s nominees. But several are facing tough re-election campaigns next year in states that Trump won in November. One of them, Bob Casey of Pennsylvania, announced Thursday he will oppose Gorsuch, saying he does not think “Judge Gorsuch’s judicial approach will ensure fairness for workers and families in Pennsylvania.”
Democrats have expressed frustration with Gorsuch’s testimony before the Judiciary Committee, in which he sidestepped most of their questions aimed at getting a sense of how he might rule on the high court. Many are also still angry that President Obama’s nominee for the vacancy created by Justice Antonin Scalia’s death, Judge Merrick Garland, was never given a hearing by Republicans.
If enough Democrats join Schumer in attempting to block Gorsuch’s nomination, at least one Republican seems ready to go nuclear. Sen. Lindsey Graham told The Mike Gallagher Show that he is willing to do “whatever it takes” to get Gorsuch on the court. Graham’s comments were first reported by CNN.
McConnell has yet to tip his hand about whether he would call for a rules change, but he told reporters this week, “If Judge Gorsuch can’t achieve 60 votes in the Senate, could any judge appointed by a Republican president be approved with 60 or more votes in the Senate?” And McConnell has vowed Gorsuch will be confirmed by the Senate before it takes its Easter recess on April 7.
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