Senate Democratic opposition to Donald Trump’s Supreme Court nominee swelled Friday as Democrats neared the numbers needed to block Judge Neil Gorsuch with a filibuster.
Senate Minority Leader Chuck Schumer of New York warned Republicans against changing Senate rules to confirm Gorsuch anyway — a rules change that could prove momentous for the Senate and would allow all future Supreme Court nominees to get on the court regardless of opposition from the minority party.
Sens. Richard Blumenthal of Connecticut and Brian Schatz of Hawaii became the latest Democratic senators to announce their opposition to Gorsuch, a 49-year-old federal appeals court judge in Denver whose conservative rulings make him an intellectual heir to the justice he would replace, the late Antonin Scalia.
Blumenthal, a Senate Judiciary Committee member who questioned Gorsuch on judicial independence and other topics in last week's hearings, complained that the judge didn’t give straightforward responses.
“We must assume that Judge Gorsuch has passed the Trump litmus test — a pro-life, pro-gun, conservative judge,” Blumenthal said in a statement. “In question after question, Judge Gorsuch had an opportunity to distance himself from right-wing groups. His refusal to answer only deepens the doubt that he is not a neutral follower of the law — an umpire who just calls balls and strikes — but instead an acolyte of hard-right special interests.”
There are now at least 35 Senate Democrats who oppose Gorsuch and have pledged to block him with a filibuster, just six shy of the number that would be required to mount a successful filibuster. The vote is expected next week.
Republicans are furious at the Democrats’ plans, arguing that filibusters of Supreme Court justices have been exceedingly rare, and accusing Democrats of responding to political pressures from a liberal base that still hasn’t accepted Trump’s election win. They anticipate that Senate Majority Leader Mitch McConnell, R-Ky., would respond to a Democratic filibuster by unilaterally changing Senate rules to lower the threshold for Supreme Court justices from 60 votes to a simple majority in the 100-member Senate.
Although such a change might seem procedural or obscure, it is known on Capitol Hill as the “nuclear option” because it would amount to a dramatic departure from Senate norms of bipartisanship and collegiality.
Schumer warned against the rules change in an interview with The Associated Press on Thursday, arguing that Republicans would be the ones to blame if it does occur.
"Senate Republicans are acting like if Gorsuch doesn't get 60 votes they have no choice but to change the rules," Schumer said. "That is bunk." He claimed that Trump should produce a more mainstream nominee instead.
Schumer’s comments came after Sens. Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota became the first two Democrats to announce their support for Gorsuch, and the only ones so far. Manchin said in a statement that “I hold no illusions that I will agree with every decision Judge Gorsuch may issue in the future, but I have not found any reasons why this jurist should not be a Supreme Court Justice.”
In another development, audio surfaced of Sen. Claire McCaskill, D-Mo., laying out the risks to Democrats in the Gorsuch vote as she spoke privately to donors. The audio was obtained by the Kansas City Star from Republicans. The senator is part of a group of 10 Democrats up for re-election next year in states Trump won, all weighing whether to vote for Gorsuch and risk angering their liberal base — or oppose him, prompting Republicans to permanently change Senate rules to eliminate the filibuster.
With the filibuster gone, Trump could nominate another justice next time there’s a vacancy without having to compromise with Democrats at all, and “all of a sudden, the things I fought for with scars on my back to show for it in this state are in jeopardy,” McCaskill is heard saying.
If confirmed, Gorsuch would replace Scalia, who died in February 2016. But if one of the more liberal justices dies or retires, Trump’s next pick could fundamentally alter the balance of the court. Justice Ruth Bader Ginsburg is 84 and fellow liberal Justice Stephen Breyer is 78. Justice Anthony Kennedy, the pivotal vote closest to the court's center, is 80.
Changing Senate rules would not be unprecedented. In 2013, Democrats were in the majority and upset about appellate court nominees getting blocked. They pushed through a rule change lowering the vote threshold on all nominees except for the Supreme Court from 60 to a simple majority.
Schumer conceded Thursday that “We made one mistake, we shouldn’t have changed the rules for lower court judges ... but we never did it for Supreme Court. This is a much bigger mistake on their behalf.”
And he defended Democratic plans to filibuster Gorsuch partly by pointing to the treatment last year of Merrick Garland, President Barack Obama’s Supreme Court nominee, who never got a hearing as McConnell led a Republican blockade.
“Judge Garland didn’t even get the opportunity to be filibustered, so let’s not say this is unprecedented,” Schumer said.