Supreme Court nominee Neil Gorsuch’s path to 60 votes is rapidly closing — setting the stage for a nuclear showdown in the Senate as soon as next week.
Senior Democratic sources are now increasingly confident that Gorsuch can’t clear a filibuster, saying his ceiling is likely mid- to upper-50s on the key procedural vote. That would mark the first successful filibuster of a Supreme Court nominee since Abe Fortas for chief justice in the 1960s.
In the latest ominous sign for the federal judge from Colorado, Sen. Bill Nelson (D-Fla.) said Monday he’ll oppose Gorsuch on the cloture vote, which is expected late next week. More than a decade ago, Nelson helped break a filibuster of now-Justice Samuel Alito.
If Democrats successfully filibuster Gorsuch, Majority Leader Mitch McConnell has heavily telegraphed that he will invoke the so-called nuclear option to unilaterally change Senate rules with a simple majority vote. And Republicans are confident they’ll have the votes to do it, even as wary as many senators are about forever altering the deliberative nature of the chamber.
“We’re not going to be treated by a double standard,” Senate Majority Whip John Cornyn (R-Texas) said in an interview on Monday. “We’ll give our Democratic colleagues a chance to see if they provide the 60 votes; if they do, it’s a moot point. And if they don’t, as I said before, we will confirm him one way or the other.”
Gorsuch got through his marathon confirmation hearings before the Senate Judiciary Committee without any obvious gaffe or misstep. But Democrats said he stonewalled the committee when pressed repeatedly about his judicial philosophy, and many have since announced they’ll vote to block his nomination.
So far, only one Senate Democrat has firmly said he’s willing to help advance Gorsuch’s nomination to a final confirmation vote: Sen. Joe Manchin of West Virginia, a moderate who is seeking another meeting with the judge this week to weigh his credentials.
“I’ve always been for cloture,” Manchin told Politico when asked whether he would vote to advance Gorsuch’s nomination, even if he ultimately opposes him. “I’ve always been, basically, ‘I’m not going to filibuster.’”
But several other Democrats on Monday were much less definitive.
Sen. Jon Tester of Montana said he is “still undecided,” as did Sen. Heidi Heitkamp of North Dakota. Sen. Tim Kaine of Virginia said he’s continuing to study Gorsuch’s record and that the threat of the nuclear option wouldn’t influence his choice. Sen. Maria Cantwell (D-Wash.), who like Nelson voted to break the filibuster on Alito, said Gorsuch’s stance on privacy rights would be a central factor in her still-unmade decision on confirmation.
“I’m reviewing the hearings,” said Sen. Michael Bennet (D-Colo.), who is facing parochial pressure to back Gorsuch because the judge hails from Denver.
Even Sen. Patrick Leahy (D-Vt.), who told a local reporter in Vermont over the weekend that he is “not inclined to filibuster,” quickly walked that back in a series of tweets Monday amid a flurry of constituent calls organized by liberal groups. The former Judiciary Committee chairman said Gorsuch will be blocked unless the judge “provides real answers” to written questions for the record. Those written responses from Gorsuch are expected back to the committee sometime midweek.
The nuclear battle could erupt as early as next Thursday. The Senate Judiciary Committee will vote to advance Gorsuch’s nomination on April 3 after Democrats successfully secured a one-week delay in the committee. The earliest McConnell could file cloture is Tuesday, April 4, which would tee up a Thursday vote to end the filibuster on Gorsuch’s nomination.
While Republicans are still publicly hopeful that eight Democrats will allow Gorsuch to proceed to a final up-or-down confirmation vote, they’re already preparing for the last ditch, nuclear scenario if — or when — Democrats mount the first successful party-line filibuster in history.
GOP leaders remain publicly and privately confident that Gorsuch will be confirmed to replace the late Justice Antonin Scalia before senators leave for the two-week Easter recess in early April. And institutional Republicans long skittish about deploying the nuclear option are now much less nervous about using the provocative procedural maneuver.
“When they’re in charge, they grab power,” Sen. Lindsey Graham said of Democrats. The South Carolina Republican said he would support the nuclear option as a “last resort.”
If Democrats successfully filibuster Gorsuch, Graham added, it would say “that qualifications will no longer matter. There’s no way you can argue that this man’s not qualified. He got the highest rating that the American Bar Association can give somebody. So it means that ideology matters.”
Even Susan Collins (R-Maine), who like Graham is among three remaining senators from the “Gang of 14” that helped defuse a brewing nuclear battle over judicial nominations a dozen years ago, left the door open to backing the nuclear option.
“I would be very disheartened if we had to take that step because I’m a strong believer in the rules of the institution,” Collins said in an interview Monday. “But clearly, it would be unfair if we cannot get a straight up-or-down vote on Judge Gorsuch.”
Democrats are under heavy pressure to oppose Gorsuch from liberal activists emboldened by Friday’s collapse of the GOP effort to repeal Obamacare. The party’s unified opposition during the health care fight has helped left-leaning activists sell their message on Gorsuch: Sticking together on a filibuster can add more political momentum heading into next year’s midterms.
Liberal groups that have fought both Gorsuch and the GOP’s Obamacare repeal bid are now homing in on the judge, cheering the growing number of Democrats declaring their opposition as they plan for a nationwide Supreme Court protest on Saturday.
NARAL Pro-Choice America President Ilyse Hogue described the Republican collapse on health care as “obviously a good thing” for Gorsuch opponents. But Hogue expects the GOP to work even harder this week to persuade Democrats to back down from a possible nuclear showdown with McConnell.
“The Trump administration needs a win” to avoid a lackluster first 100 days in office, Hogue said, while conservatives “who held their noses and got behind Trump’s candidacy for this reason specifically — this is absolutely the Holy Grail to them — those are the converging forces that show me they’re going to double down.”
Still, liberals have reason to believe that the tide has turned in their direction, even if a successful filibuster forces McConnell to push a historic change to Senate rules. Several anti-Gorsuch activists question whether McConnell locked down the 51 votes needed to quash the minority’s power to filibuster Supreme Court nominees.
And the Democratic base is feeling good about a minority leader whose early moves had some on the left worried he might be too willing to accommodate the White House. “Schumer has stepped up,” one prominent progressive said.
“Seeing Trump give up the moment going gets tough stiffened Democrats’ spines to fight hard for their principles on Gorsuch,” MoveOn.org Washington director Ben Wikler said. “It’s clear that if Democrats are united around popular principles, and fight back hard, they can win.”
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