A group of Senate Democrats is beginning to explore trying to extract concessions from Republicans in return for allowing Supreme Court nominee Neil Gorsuch to be confirmed, according to multiple sources familiar with the matter.
The lawmakers worry that Gorsuch could be confirmed whether Democrats try to block him or not — and Democrats would be left with nothing to show for it. That would be a bitter pill after the GOP blocked Merrick Garland for nearly a year.
The deal Democrats would be most likely to pursue, the sources said, would be to allow confirmation of Gorsuch in exchange for a commitment from Republicans not to kill the filibuster for a subsequent vacancy during President Donald Trump’s term. The next high court opening could alter the balance of the court, and some Democrats privately argue that fight will be far more consequential than the current one.
If Democrats move ahead with the plan — it’s still in the early discussion phase — it would require buy-in from some Republicans, but not necessarily Majority Leader Mitch McConnell (R-Ky.) or his top deputies. At least three rank-and-file GOP members would have to pledge not to vote to unilaterally change the Senate rules through a majority-only vote later in Trump’s term — the so-called nuclear option.
Cobbling together a group of senators from opposing parties to take such a stand would be difficult, given the long-running partisan war over confirming judges and pressure from the left to deny Gorsuch confirmation. But some Democrats are worried enough about the Senate losing its unique minority rights that they’ve begun kicking the tires on the potential for a new bipartisan “gang.”
The current talks are limited to about a half-dozen Democratic lawmakers. They haven’t made an offer to Republicans yet, and Democratic leaders wouldn’t support one.
Democrats familiar with the effort requested anonymity to discuss a sensitive matter that divides the caucus. Some liberals are aiming to block Gorsuch, while others are worried about the electoral prospects for 10 senators up for reelection next year in states won by Trump if they’re seen as obstructing the president’s court pick.
Any move to save the filibuster would be reminiscent of the “Gang of 14,” a group that included Democrats who agreed to confirm some of President George W. Bush’s stalled judicial nominees as Republicans pledged not to support a rules change. Just three members of that 2005 collection are still in the Senate.
“It’s a really tough situation, and they’re going to have to find their way through it because that 60-vote threshold is important for the Supreme Court,” said former Sen. Mary Landrieu (D-La.), a member of the Gang of 14.
No Democrats have announced their support for Gorsuch yet. Under current Senate rules, McConnell will need at least eight Democratic votes. In the minds of some senators, that gives Democrats some leverage over McConnell — though the GOP leader could move to get rid of the 60-vote threshold if Democrats obstruct Gorsuch.
“We don’t need to be taking a deal,” said a senior Republican aide.
Some Democrats believe McConnell is loath to change Senate rules on a majority vote. Doing so would allow Democrats to more easily confirm liberal judges the next time the party wins the White House and Senate. It’s also not clear McConnell could get 50 of his 52 members to agree to eradicate the filibuster for Supreme Court nominees, a step that would move the Senate even further toward a majority-rule, House of Representatives-style body.
The move would be met by criticism on the left. Josh Orton, a longtime Democratic aide working against Gorsuch, said any attempt to confirm Gorsuch would “hand Trump’s White House not only it’s first win, but one of the biggest victories any White House can get. I can’t think of anything less strategic.” Others are skeptical they could even trust Republicans to keep a promise if any deal is reached.
But the threat of a rules change that would affect future Supreme Court vacancies is alarming to some centrist Democratic lawmakers.
Sen. Joe Manchin of West Virginia is perhaps the most concerned about the party’s predicament, according to Democrats. He is the only Senate Democrat left in the chamber who opposed the 2013 rules change.
“I would not want to be the person — and that would be Mitch McConnell — that basically changed the Senate from what the Founding Fathers [intended],” Manchin told reporters on Wednesday. “And that’s why I was so concerned about what Harry Reid did.”
Manchin was referring to the former Democratic leader’s move in 2013 to unilaterally lower the voting threshold for all nominees except those to the Supreme Court from 60 to a simple majority.
Sen. Chris Coons (D-Del.) is one of the senators seeking a solution that would avoid the nuclear option, two Democratic sources said.
Coons is “open about his concern for preserving the filibuster and the impact this process may have on the Senate, and he has talked with both Republican and Democratic senators about that. At the same time, he remains concerned about the approach Judge Gorsuch would bring to the Court,” said spokesman Sean Coit.
Some Republicans are aware of the Democratic discussions. One GOP source said Democrats “definitely” are looking for a way to avoid a rules change down the road, but no offer has been presented to rank-and-file Republican senators.
In addition to talk of getting a GOP commitment on the next court vacancy, two other, less realistic options are also being discussed.
One would be an agreement to confirm Gorsuch in exchange for moving all judicial nominees back to the 60-vote requirement. Republicans are unlikely to agree, given that they are in the majority and have more than 100 lower-level vacancies to fill.
Another ambitious possibility: Some Democrats want to confirm Gorsuch only with an agreement that another justice retire and is replaced with Garland. The idea has almost no chance of success. But it’s being pushed by Sen. Tom Udall (D-N.M.), who said that there’s too much “distrust” in the Senate to believe Republicans are willing to make a deal on a future vacancy, so they must make a deal now on Garland.
“I’m not there,” Udall said of seeking a commitment from Republicans not to change the rules. “I just hope someone does something.”
Notably, Sen. Tom Carper of Delaware has warmed to Udall’s position. He’s viewed as one of the handful of Democrats who could support Gorsuch, but he has not even met with the nominee.
“It would be fair to say,” Carper said, “I’m interested in getting justice for Merrick Garland.”
Seung Min Kim contributed to this report.
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