Democrats heard the argument throughout the Senate’s bitter debate over Neil Gorsuch: Don’t filibuster this Supreme Court nominee — save your leverage for President Donald Trump’s next pick, the one who could change the court’s balance of power for a generation.
But most Democrats decided that holding their fire this time would make no difference in the end.
Trump would choose the judges he wants, without regard to how Democrats might react, they concluded. And Majority Leader Mitch McConnell was intent on blowing up the filibuster for high court nominees, if not now, then next time, in order to maintain the GOP’s grip on the court. His unprecedented blockade of Merrick Garland, Barack Obama’s Supreme Court nominee, made that clear, they believed.
So if Democrats were going to lose the filibuster regardless, best to go down swinging now on a nominee many found far too conservative — a move that would also please a liberal base still spoiling for a fight against Trump.
“Republicans telegraphed in their treatment of Garland that they were going to change the rules whenever they need to in order to get the court packed to their favor,” Sen. Chris Murphy (D-Conn.) said in an interview. “Anybody who thought that giving Gorsuch the votes was going to allow us to have veto power over the second vacancy is deluding themselves.”
The risks of filibustering Gorsuch were painfully apparent to Democrats. Now that Republicans have triggered the “nuclear option” and unilaterally killed the 60-vote filibuster for high court nominees, Trump could feel liberated to tap an even more conservative nominee if a second Supreme Court vacancy occurs.
But the 48-member caucus, led by Minority Leader Chuck Schumer (D-N.Y.), largely rejected that argument. As most Democrats saw it, Trump’s decision to choose a nominee from a list of 21 judges blessed by conservatives at the Heritage Foundation and Federalist Society already ensured that his second high-court selection would be as objectionable to them as his first.
“If this were a nominee that were a product of consultation, not the product of a very conservative think tank … but it isn’t,” California Sen. Dianne Feinstein, a veteran of Supreme Court battles and the Judiciary Committee’s top Democrat, told reporters after her party tried to block Gorsuch.
“[Trump] said, ‘This is my shopping list, my prospect pool,’” centrist Sen. Tom Carper (D-Del.) said in an interview. “My expectation is that if he’s still president” when another court vacancy emerges, “I would expect him to pick from that” list regardless of how Democrats handle the issue.
In fact, Trump’s team is already preparing for a possible second open seat on the high court, in part by cultivating relationships with Justice Anthony Kennedy’s family and his former clerks, who includes Gorsuch.
A second vacancy is likely to have more significant consequences for the court than the confirmation of Gorsuch, who replaces similarly conservative Justice Antonin Scalia. The next court departure could be a swing vote like Kennedy or a liberal, such as 84-year-old Justice Ruth Bader Ginsburg.
But averting a nuclear standoff over Gorsuch would have required Democrats to trust that McConnell wouldn’t embrace a rules change on a second Supreme Court fight under Trump, which they had no reason to believe.
“All of those issues in the consideration of a second appointment, should there be one, are exactly the same kind of questions you face here,” Sen. Ron Wyden (D-Ore.) said in an interview. “There was never any assurance at any point.”
Before he joined a filibuster against Gorsuch, Sen. Bill Nelson (D-Fla.), who faces a possible primary challenger as well as a tough reelection battle next year in a state that Trump carried, said he couldn’t focus on a hypothetical second vacancy in making a decision.
“I have to focus on the facts that I see them, applied to the man that’s in front of us,” Nelson told POLITICO.
The political rewards of going to the brink against Gorsuch were also soon made clear, as liberal groups mobilized already-emboldened activists to provide backup for Democrats’ filibuster push.
“Democratic senators being pulled in multiple directions were really looking to the cues and passions of the grass roots,” said NARAL Pro-Choice America President Ilyse Hogue, whose abortion-rights group led a coalition on the left prodding Democrats to deny Gorsuch 60 votes.
In addition to Democratic disgust for how Garland was treated, many Democrats came to believe Gorsuch’s views were far outside of the mainstream.
“I don’t know that you can get much more conservative than Neil Gorsuch,” Murphy said. “I know his disposition looks moderate, but his record is not.”
Not all Democrats were eager to see whether McConnell would really go nuclear.
Sen. Chris Coons (D-Del.) tried to strike a deal with other moderates to allow Gorsuch to advance with 60 votes in exchange for a concession from the GOP, in order to try to preserve the ability to filibuster a future Supreme Court pick.
“I wanted certainty that the voice of the minority would still be heard as next vacancies arise,” Coons said, though with no deal to be made, he joined the filibuster.
McConnell shrugged off a question on Friday about whether Democrats’ attempt to derail Gorsuch’s nomination portends an even bigger battle over a second Trump high court pick.
“We don’t have another seat right now,” he told reporters, adding that he hopes to see the chamber recover “some semblance of normalcy” after the coming two-week recess.
Trump also told reporters before Gorsuch’s final confirmation that McConnell’s rules change “won’t at all” influence how he approaches a potential second Supreme Court nomination.
“Hopefully, if there is a second one in my administration — there could be as many as four … I don’t think the nuclear option has anything to do with [it] at all,” Trump said.
Sen. John McCain, however, was unconvinced. The Arizona Republican told reporters Thursday that the demise of the Supreme Court filibuster “will clearly lead to more extreme appointments on both sides.”
And Carper, a moderate Democrat who filibustered Gorsuch to protest the history-making halt of Garland’s nomination, didn’t disagree that Trump could select even more conservative justices following the demise of the Supreme Court filibuster.
But like other Democrats, he expressed few regrets with how his party handled the Gorsuch fight, regardless of what might come next.
Asked whether Trump might pick a TV personality for the court — Fox News commentator Andrew Napolitano has claimed to be under consideration — Carper quipped, “Judge Judy? You never know.”
Seung Min Kim contributed to this report.
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