Minutes after President Trump announced the Supreme Court nomination of Neil Gorsuch, Sen. Richard Blumenthal (D-Conn.) ran into the buzz saw of Twitter insta-analysis. The senator, who had told reporters hours earlier that the court could function just fine with eight justices, intended to make a point about President Barack Obama’s blocked nominee, Merrick Garland.
“He should have a hearing,” Blumenthal said. “I don’t want to repeat what happened to Judge Merrick Garland. That was a travesty, an outrage. I’m still angry about it. I know many of my colleagues are. We should do the right thing here, not repeat the Republicans’ wrong.”
Tom McKay, a reporter at the news site Mic, tweeted that Blumenthal had said ‘Democrats should ‘do the right thing’ and confirm Gorsuch.” The hate-tweets started immediately.
Just moments later — after a few more tweets at Blumenthal, not printable here — McKay admitted that he had biffed the quote.
This small argument, about nearly nothing, demonstrated just how simple and predictable the various Democratic responses to the Gorsuch nomination are — and how easily they can be misunderstood.
It’s been seven years since a Supreme Court nomination reached the Senate Judiciary Committee, and 12 years since an actual battle over a nominee. In the intervening years, the court wars have become even more bitter and partisan. Both Hillary Clinton and Bernie Sanders promised only to nominate a justice who would overturn the Citizens United decision; Trump, who had a transactional campaign relationship with evangelical leaders, promised one who would overturn Roe v. Wade. That the seat left vacant by the death of Antonin Scalia will be filled by a president who lost the popular vote is a source of incandescent Democratic rage.
Because they are politicians, Democrats are processing that rage into anodyne-seeming, and easily confused, sound bites. Here is a guide to them, in ascending order of intensity.
6) “We should debate his qualifications on the Senate floor.”
That was Sen. Joe Manchin’s (D-W.Va.) take, and it is widely and correctly understood to mean he’s already ruling out a filibuster. To say Gorsuch deserves a “debate” is to say, already, that you will vote for cloture, starting a floor debate on his nomination.
This is important because several red state senators may use this language to support Gorsuch without preempting their colleagues’ use of the filibuster. The 48-member Democratic caucus can afford to lose seven members on a cloture vote, and still deny Republicans the 60 votes needed to end a filibuster. This is why groups like the National Rifle Association will make clear that the actual vote on confirmation will be “scored”; it’s also why the coming ad spending in red states may confuse voters, as senators like Manchin will happily explain that they’re breaking from colleagues to support cloture. (There are eight Democrats in states won by Trump up for reelection in 2018, but only five in states that voted for the previous five Republican nominees.)
5) “I look forward to sitting down with Judge Gorsuch.”
That was how Sen. Jon Tester (D-Mont.), who is also up for reelection in a red state, reacted to the news. He did not mention Garland. He promised only to have a conversation, without conditions, with the nominee. That leaves the door open for anything from a filibuster to a “yes” vote.
4) “He should have a hearing.”
This, via Blumenthal, is a gracious-sounding acquiescence of something Democrats couldn’t stop if they wanted to. Every Democrat who was asked about it argued, for a year, that Garland deserved a hearing. Senate Judiciary Chairman Charles E. Grassley denied him one, with no political consequence whatsoever. Because Grassley is still chairman, it is up to him, not Democrats, whether Gorsuch will get a hearing.
3) “We owe it to the American people to vet this nominee.”
Slightly hotter than Tester’s response — the cayenne to his jalapeño — Sen. Mazie Hirono’s (D-Hawaii) reaction implies that there is something about Gorsuch that Democrats should oppose. (You don’t promise to vet something that you’re pretty sure you like.)
2) “All of President Obama’s Supreme Court nominees cleared a sixty vote threshold and President Trump’s nominee should adhere to the same standard.”
That was the kicker of Sen. Jack Reed’s (D-R.I.) response, all but promising a filibuster. To say there is a 60-vote threshold is to say which side of it you want to be on.
1) “This is a stolen seat being filled by an illegitimate and extreme nominee, and I will do everything in my power to stand up against this assault on the Court.”
Thus spake Sen. Jeff Merkley (D-Ore.), the low-key progressive who was the most adamant opponent of the Gorsuch nomination even before it was a nomination. To say you’ll “do everything” is to say you may be willing to go beyond the filibuster — but, yes, obviously you’ll filibuster.