When Judge Neil Gorsuch met with Senate Minority Leader Charles E. Schumer on Feb. 7, he told the Democrat something he would repeat privately and publicly: Attacks on the federal judiciary are “disheartening.”
Just three days had passed since President Trump tweeted his disdain for the “so-called” judge in Washington state who knocked down his first attempt at a travel ban. But when Schumer asked Gorsuch whether he was willing to repeat himself publicly and explicitly call out Trump, the judge and his team declined, according to two people familiar with the exchange who spoke on the condition of anonymity to describe the private gathering. But they affirmed that Schumer was free to talk about the conversation publicly if he wanted.
The next day, Gorsuch expressed the same “disheartening” sentiment, this time in a meeting with Sen. Richard Blumenthal (D-Conn.), who disclosed the discussion — grabbing headlines and then concern from colleagues. Democrats began to ask themselves whether Gorsuch was offering a canned line, written to give him distance from Trump without actually signaling that he would break with the president.
“They came to me afterward and they said, ‘Wow, he used the same words with me, same act,’ ” Blumenthal recalled in an interview.
The anecdote is telling in that Senate Democrats — who will move on Thursday to block Gorsuch’s confirmation to the Supreme Court — have long had their reservations about Gorsuch, a genial federal appeals court judge who appeared to be caught up in the partisan trench warfare that long preceded him. The decision by 44 Senate Democrats to block consideration of Gorsuch on the Senate floor sets up a historic clash with Republicans, who are expected to move to change the Senate rules, allowing the judge to be confirmed by a simple majority. Under current rules, Republicans would need 60 votes to break the Democratic filibuster.
The confrontation, which members of both parties had once hoped to avoid, comes as liberal organizers demanded that Democrats step up their resistance to Trump. But it is also rooted in Gorsuch’s private answers to individual Democratic senators on what kind of justice he would be and his public testimony before the Senate Judiciary Committee about his philosophy.
“We had the opportunity to listen to Gorsuch, meet with him, watch the committee hearings — something that wasn’t given to the Obama nominee — and came to the conclusion, each on our own, that this was not somebody we could support,” said Sen. Patty Murray (D-Wash.).
The “Obama nominee” Murray mentioned is Merrick Garland, who the previous president nominated last year but who Senate GOP leaders never considered. Lingering anger about Garland planted the seeds for the resistance against Gorsuch that could not be easily overcome, Democrats say.
That bitterness was evident in the Senate-floor speeches Democrats delivered on Wednesday — including a marathon address by Sen. Jeff Merkley (D-Ore.), who spoke against Gorsuch for about 15 hours all night Tuesday and into Wednesday morning.
“To proceed to fill this stolen seat will damage the court for decades to come,” Merkley declared.
Republicans continued to argue Wednesday that Democrats were being held hostage by a restive political base.
“Democrats are bowing to hard-left special interests that can’t get over the results of the election and thus are demanding complete Democratic opposition to everything this president touches,” said Senate Majority Leader Mitch McConnell (R-Ky.) on the Senate floor.
Even as Democrats were able to band together against Gorsuch, their strategy is risky. It could spur Trump to fill future Supreme Court vacancies with even more conservative picks and put their agenda at greater peril.
As recently as last month, Republicans hoped that at least eight Democrats would find it politically impossible to oppose Gorsuch. Ten of the party’s senators represent states won by Trump in the 2016 elections — five of them states he won handily. The National Rifle Association and the conservative Judicial Confirmation Network bought millions of dollars in television ads on the issue, asking red state voters to demand a “yes” vote from their senators.
At this point, only three Democratic senators — all from states won by Trump in the elections — have publicly said they will support him.
It wasn’t just opposition from outside Washington that caused Democrats to unite against Gorsuch.
While Gorsuch was meeting with senators on Capitol Hill in February and March, Schumer (D-N.Y.) was busy piecing together a coalition against him, made up of Democrats who were angry at the judge, Trump and McConnell for a variety of reasons. Garland was one, they said. Another was concern about Trump’s controversial actions and whether Gorsuch would stand up to them. Yet another was the worry that Gorsuch would not represent the views of everyday people over wealthy companies.
As time went on, Senate Democrats said they soured on Gorsuch even more. They said his guarded answers to questions during his confirmation hearings did little to persuade them that he would serve as a check on Trump. And as he did in his meeting with Schumer, Gorsuch declined in those hearings to explicitly call out Trump’s criticism of federal judges.
Outside of the Senate, progressives cobbled together an anti-Gorsuch movement.
Ilyse Hogue, the president of NARAL, sent a Feb. 21 email to fellow activists, asking for bodies to oppose the nominee. More than a dozen groups followed suit, creating the People’s Defense, rallying in Washington and the states and collecting more than 1 million signatures.
“People are in a mood for a principled stance, not for backroom deals,” Hogue said. “We were told it was unwinnable, but we didn’t really care about the political math. Women needed this fight to be fought.”
Progressives and the Senate Democrats were not terribly well organized when the seat first opened. For much of 2016, after Obama nominated Garland to the court, outside groups endorsed a “We Need Nine” campaign, charging Republicans with blocking the people’s business by not holding hearings or a vote.
The campaign against Gorsuch was much more openly ideological. “Gorsuch ruled in favor of Hobby Lobby, the case that sought religious exemptions for employers who wanted to deny contraceptive healthcare coverage, before it went to the Supreme Court,” wrote the progressive Working Families Party, a member of the People’s Defense, in a February email to supporters. “Gorsuch could also cast a deciding vote on whether immigrants can be detained without due process.”
Gorsuch’s hearings, which began on March 20 in the Senate Judiciary Committee, ended up costing him votes. While Gorsuch allies praised his demeanor, Democrats came away unsatisfied with his answers on issues they expected to come before the court. Sen. Sheldon Whitehouse (D-R.I.) confronted the nominee about the outside spending that had promoted his nomination, and whether he would owe his job to anonymous donors.
“You’d have to ask them,” Gorsuch said.
“I can’t,” Whitehouse said, “because I don’t know who they are.”
When Whitehouse returned home for a town hall meeting, he was welcomed with a standing ovation for his question — and afterward, he told reporters that he was committed to blocking Gorsuch.
“Gorsuch did himself no favors in that hearing,” said Ian Millhiser, a senior fellow at the Center for American Progress. “He mansplained fairly basic concepts to women senators. He pushed way too hard on the ‘I’m not going to express a view about anything, ever’ fallback — much harder than previous nominees. And then, after the Supreme Court unanimously overturned one of his opinions, he defended himself by misrepresenting his own opinion.”
After the hearing, just four Democrats announced that they would oppose a Gorsuch filibuster. Seven of the Democrats from Trump-won states opposed him, all comfortably couching their decision with the issues they expected him to rule on.
“With Judge Gorsuch on the bench, I am deeply concerned that dark money will continue to drown out the voices and votes of citizens,” said Sen. Jon Tester (D-Mont.), whose state passed tough campaign finance laws that were struck down by a Republican-appointed judge.
Some Republicans say they could sense for months that Democrats were going to have the votes to block Gorsuch.
“I could count, sure,” said Sen. John McCain (R-Ariz.). “But I had hoped that we could do what we had done in the past, and that was reach some agreement. And we haven’t, so it’s permanent damage to the body.”
Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) said it became clear to him that Gorsuch was not going to have the 60 votes necessary to break a Democratic blockade “at the end of the questioning” during his confirmation hearing.
“I’m not surprised because of their feeling about Garland, but very surprised considering the qualifications that this guy has,” Grassley said.
Republicans continued to sing Gorsuch’s praises ahead of the expected Thursday clash. Sen. Mike Rounds (R-S.D.) called Gorsuch “one of the finest judges our nation has to offer” and said he would uphold “justice, fairness and an interpretation of what the law is.”
A single-party filibuster has never successfully blocked a Supreme Court nomination. A bipartisan coalition used the procedural vote to defeat Abe Fortas’s 1968 nomination to be chief justice. After his marathon speech, Merkley admitted that he would have preferred that the parties come to a deal. But he saw partisan rancor coming from the other side.
“We labored for the better part of a year, working with our Republican colleagues. It wasn’t like what’s going on now,” he said. He snapped his fingers. “Just like that.”
Ed O’Keefe contributed to this report.