This post has been updated (2:13 p.m.).
Senate Minority Leader Charles E. Schumer (D-N.Y.) said he would join with other Democrats in filibustering the nomination — a move that could complicate his confirmation and lead to a total revamp of how the U.S. Senate conducts its business.
Since last year’s elections, Democrats have threatened to force Trump’s Supreme Court nominees to clear procedural hurdles requiring at least 60 senators to vote to end debate and proceed to a confirmation vote. Republicans are eager to confirm Gorsuch before an Easter recess next month, but with few Democrats expressing support for Gorsuch, they have threatened to change Senate rules to ensure the judge’s swift confirmation — a move that would allow Supreme Court picks to be confirmed with a simple majority vote.
In his floor speech Schumer hit all the talking points: His repudiation of the president’s remarks about judges was not robust enough; he didn’t convince Schumer that “he would be a neutral judge, free of ideology and bias”; and he would not tell senators how he’d vote on various issues. The standard Schumer laid out, however, would have prevented the confirmation of Justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg. (“Let me repeat: There is no legal standard, rule or even logic for failing to answer questions that don’t involve immediate and specific cases that are or could come before the court. It is evasion, just evasion, plain and simple.”) He, of course, expressed indignation that Judge Merrick Garland did not get his vote.
And that does seem to be at the heart of this — the Democratic base’s outrage at the treatment of Judge Merrick Garland. Given Gorsuch’s stellar performance and credentials, Democrats are essentially saying no nominee President Trump could possibly come up with should be on the court because they were cheated out of a seat. This is as defensible as Republicans’ stunt in denying Garland a vote in the last year of the Obama presidency. Sadly, it represents the predictable devolution of the Supreme Court process into power politics. (It also raises the question of whether they would filibuster Gorsuch if he came up for another open seat.)
Schumer, knowing his obligation to the base and the concerns of his more moderate members who are up for reelection in 2018, has provided liberals with an opportunity to show their bona fides for the base (vote against cloture) and for moderates to show red-state voters they are not wild-eyed liberals (vote for cloture).
There may well be enough Democrats to vote for cloture, but who will vote against the judge on the nomination himself? Sens. Joe Manchin (D-W.Va.), Jon Tester (D-Mont.), Heidi Heitkamp (D-N.D.) and Bill Nelson (D-Fla.) may fall in this category. Getting to eight (for a total of 60) may be a challenge, but hardly impossible. If the filibuster fails, everyone gets what they want. Republicans get a conservative justice, liberals tell the base they tried, Democratic centrists protect their seats, and the filibuster for Supreme Court nominees survives.
If there are not eight votes, Majority Leader Sen. Mitch McConnell (R-Ky.) will likely be forced to go the nuclear route, something he plainly does not want to do. As an institutionalist, he has often defended minority rights in the body and reiterated the notion that the Senate purposefully operates in a different way than the House. That said, I see no possibility he would hold out against the White House and base in allowing the Democrats to block Gorsuch.
We make no bones about our distaste for the situation in which the Senate finds itself. Sotomayor and Kagan were properly confirmed by large majorities. It’s been downhill since then. Garland should have gotten his vote, and as a mainstream albeit progressive-leaning judge, should have been confirmed. Gorsuch should get his vote and should enjoy broad support precisely because he is the Garland of the right — qualified, respected, fair and without the hard ideological edge we have seen from some nominees. That’s not where we are however, and the country is worse off for it.
Both parties share the blame for this politicization of the nomination process. It will be up to moderate Democrats to say: Enough. It stops here. Give a qualified judge whom I would not have selected his up or down vote. Whether they do so remains to be seen.
Correction: An earlier version of this post misspelled Justice Ruth Bader Ginsburg’s name. This version has been corrected.