The top Senate Democrat warned on Thursday that it is unlikely Democrats and Republicans can reach a deal by next week to avoid a bitter showdown over the confirmation of Neil Gorsuch, President Trump’s first choice to serve on the U.S. Supreme Court.
“I don’t think they’ll be able to come to any kind of agreement,” Senate Minority Leader Charles E. Schumer (D-N.Y.) said in an interview with The Washington Post. “It’s virtually impossible.”
The warning came at a critical moment for Trump and lawmakers still reeling from last week’s decision to abruptly end debate on a Republican plan to rewrite health-care policy. The decision has upended the political dynamic on Capitol Hill, giving Democrats a stronger hand in upcoming debates over the federal budget, potential talks over revamping the tax code and transportation funding — all major priorities for Trump.
But Democratic senators can only slow, not stop, Republicans from confirming Gorsuch, a 49-year-old judge on the Denver-based U.S. Court of Appeals for the 10th Circuit whose nomination has united GOP lawmakers behind Trump as nothing else so far this year.
On Thursday, two moderate Democrats facing GOP pressure to support Gorsuch, Sens. Heidi Heitkamp (N.D.) and Joe Manchin III (W.Va.), said that they would back him. But an additional 32 Democrats oppose Gorsuch and plan to filibuster him, according to a Washington Post whip count — meaning that the judge will need 60 votes to clear a procedural hurdle before a final confirmation vote scheduled for later next week.
Republicans hold 52 seats in the Senate, not enough votes to defeat a filibuster but enough to invoke the “nuclear option” that would change Senate rules and allow Gorsuch’s confirmation — and others after it — to proceed on a simple majority vote.
Senators fearful of ending long-standing traditions tried in recent days to ward off a bitter floor fight but failed to launch talks on a compromise. In the interview, Schumer said he doubted that an agreement could be reached.
“The deal would be, ‘We won’t change the rules on the next one,’ but the nuclear option is always available,” he said. “So how do you solve that?”
Senate Majority Leader Mitch McConnell (Ky.) and other Republicans have said that Gorsuch will be confirmed “no matter what” — a threat to change Senate rules to do so.
But Schumer said it is “absurd” that Republicans believe they need to change the chamber’s rules to confirm Gorsuch. Schumer warned that Republicans face an “uphill slog” that became more difficult after Gorsuch’s confirmation hearing.
Over three days last week, Gorsuch spent nearly 20 hours answering approximately 1,200 questions from members of the Senate Judiciary Committee, according to aides helping him with his confirmation. He has also provided 70 pages of written responses to questions from senators of both parties, those aides said. As of Thursday, Gorsuch had met with nearly 80 senators — including seven this week, but aides declined to specify with whom he met with in recent days.
Regardless, Gorsuch “did not convince people he was independent and thoughtful and down the middle,” Schumer said — a sentiment echoed by other Democrats in recent days.
Throughout history, the overwhelming majority of Supreme Court nominees have received a substantial majority of votes for confirmation. No Supreme Court nominee has ever been blocked by a single-party filibuster. Abe Fortas, nominated to be chief justice in 1968, was the only nominee for the court to get blocked on the so-called cloture vote, by a bipartisan coalition that had enough votes to defeat his nomination outright.
In the nearly 50 years since, just two justices — William Rehnquist and Samuel A. Alito Jr. — have been the only nominees to face a cloture vote. Rehnquist faced one when he was first nominated in 1971 and when he ascended to chief justice in 1986.
Republicans are increasingly agitated with Democratic attacks on Gorsuch. On Thursday, one of his staunchest defenders, Sen. Lindsey O. Graham (R-S.C.), called him “one of the finest men to ever serve on the bench in the history of this country” and used an interview on Fox News to denounce “garbage” Democratic attacks on Gorsuch’s record.
Sen. John Cornyn (R-Tex.) described the Democratic opposition as “an escalation” of years-long partisan feuds over the composition of federal courts.
“It’s sort of like the Hatfields and McCoys; the feud’s been going on for so long that people have forgotten what the initial causes were,” Cornyn said on Wednesday. “But it did start back in the George W. Bush administration when this whole idea of filibustering judges with requiring 60 votes was cooked up. And, unfortunately, we’ve been through 15 years of that, and this is just the latest incarnation of that fight.”
Conservative organizations, including the National Rifle Association, are spending millions of dollars to pressure the 10 Democratic senators facing reelection next year in states that Trump won.
With Manchin and Heitkamp on board, attention will turn to others, including Sen. Claire McCaskill (D-Mo.), who told donors in recent days that a decision on Gorsuch “is really hard,” according to a recording obtained by the Kansas City Star.
“There are going to be people in this room that are going to say, ‘No, no, no. You cannot vote for Gorsuch,’ ” McCaskill said in the recording, which was verified by her office. “Let’s assume for the purposes of this discussion that we turn down Gorsuch, that there are not eight Democrats that vote to confirm him and therefore there’s not enough to put him on the Supreme Court. What then?”
If it comes to that, Schumer said, Democrats would be willing to consult with Trump on a replacement. As a candidate, Trump vowed to select from a list of 21 names provided by the conservative Federalist Society and Heritage Foundation. Gorsuch came from the list — and Democrats blasted Trump for “outsourcing” his choice.
When Schumer met with Trump and other senators in January to discuss the Supreme Court, he said he told Trump that “we couldn’t support anybody on that list.”
Asked for the names of potential replacements, Schumer demurred.
“I have not done the research. I’m not going to throw out a name now before the process unfolds,” he said.