The battle to confirm Judge Neil Gorsuch to the U.S. Supreme Court entered its final phase Monday as Republicans prepared to send the nomination to the full Senate, possibly triggering not only a Democratic filibuster but a rules change that could escalate fighting over future court nominees.
As the Senate Judiciary Committee considers Gorsuch’s nomination, a ttention will be focused on Sens. Dianne Feinstein (D-Calif.) and Sen. Patrick J. Leahy (D-Vt.) to see if they reveal plans for a filibuster. It is not known whether each would vote to end the procedural roadblock and proceed to a final vote.
The judiciary panel, where Republicans hold a majority of seats, is expected to approve Gorsuch without issue. This would allow debate on the nomination to begin in the full Senate, likely on Tuesday morning.
Republicans have vowed to confirm Gorsuch by Friday, when a two-week recess is set to begin, meaning that the process will consume the Senate’s floor schedule this week. That timeline would give the 49-year-old federal appeals court judge a chance to join the high court in late April and to participate in the final cases of this year’s term, which ends in June.
Gorsuch’s nomination to replace the late Justice Antonin Scalia, with whom he shares an “originalist” philosophy of constitutional interpretation, is unlikely to tip the ideological balance of the Supreme Court. And Gorsuch’s three days of confirmation hearings last month never captured the national attention afforded to previous nominees.
But the final round of debate on his nomination could be bitter. The Republican-controlled Senate is likely to confirm him, but only if it changes the chamber’s rules. Democrats are vowing to filibuster Gorsuch, a tactical roadblock that can only be overcome with the votes of 60 senators. Republicans hold 52 seats, and only three moderate Democrats so far say they plan to vote for Gorsuch.
On Sunday, Senate Minority Leader Charles E. Schumer (D-N.Y.) said on NBC’s “Meet the Press” that it is “highly, highly unlikely” that Republicans will get the 60 votes needed to end a Democratic filibuster.
If Democrats successfully filibuster Gorsuch, McConnell and his caucus are likely to agree to change the chamber’s rules and end filibusters on Supreme Court picks. That would extend a rule change made by Democrats in 2013 that punished Republicans for years of attempts to block President Barack Obama’s nominees by ending filibusters for all executive branch appointments and lower-court picks.
Last year, Republicans refused to hold hearings or votes for Judge Merrick Garland, Obama’s choice to replace Scalia, arguing that the next president should get to pick the replacement. The move infuriated Democrats — and has been a major factor in generating such unified opposition to Gorsuch.
Martin B. Gold, a former floor adviser and counsel to Senate majority leaders Howard Baker (R-Tenn.) and Bill Frist (R-Tenn.), who has written a book on Senate floor procedure, warned that this week’s expected change in Senate rules is likely to put even more importance on the partisan control of the Senate.
“Between the Democrats taking offense at what the Republicans did on Garland and Republicans taking offense to what Democrats are doing to Gorsuch, you wonder who’s going to put the weapons down, or if they’ll always stay drawn,” Gold said. “And if the partisan makeup flips, you wonder if a president will ever get anyone confirmed.”
Gorsuch, 49, was nominated by Trump on Jan. 31 and spent weeks privately meeting with senators and preparing for his confirmation hearing. He was questioned by the Judiciary Committee last month for almost 20 hours over three days, answering nearly 1,200 questions and later sending about 70 pages of answers to written follow-up questions, according to a team of White House officials assisting with his nomination.
As of Friday, Gorsuch had met with 78 senators — all but some of the most conservative and liberal senators whose votes are more likely to be for or against him. But three first-term Democratic senators, Catherine Cortez Masto (Nev.), Tammy Duckworth (Ill.) and Kamala D. Harris (Calif.), said that they had tried and failed to get a face-to-face meeting with the nominee or were never offered the opportunity.
The fact that the three senators are female, with one Hispanic, one Asian and one African American, was not lost on some progressive groups that highlighted the perceived snub over the weekend.
Gorsuch aides insisted privately that difficulties scheduling time with the senators was the only reason they never met.
At the Judiciary Committee, the final outcome has never been in doubt, given that no Republican ever expressed concerns with Gorsuch and no Democrat on the committee ever signaled any favor for him.
Instead, Democrats have complained that on issues ranging from abortion rights to whether the nominee agreed with Supreme Court rulings in key privacy and racial segregation cases, Gorsuch repeatedly demurred, citing a concern that speaking too specifically on such matters might affect his ability to render fair decisions in future cases.
Gorsuch’s refusal to get specific mirrors what previous court nominees have done dating back to Justice Ruth Bader Ginsburg. But critics noted that despite 10 years as a member of the 10th Circuit Court of Appeals, Gorsuch had never ruled on issues like abortion rights or some environmental matters.
In interviews before Gorsuch’s confirmation hearings last month, several Republican senators agreed that Gorsuch was a safe conservative choice who would maintain the balance of the court and make future fights to fill vacancies even more critical.
“I have no doubt that from the Democrats’ perspective, the next vacancy will be Armageddon. They will fire every attack they can marshal at whoever the nominee is,” said Sen. Ted Cruz (R-Tex.).
Sen. Jeff Flake (R-Ariz.) agreed, saying that the next confirmation fight will be “a bloodbath.”
The predictions by Cruz and Flake assume that the next Supreme Court vacancy will be caused by the departure of aging liberal justices, such as Ruth Bader Ginsburg or Stephen G. Breyer, or by Justice Anthony M. Kennedy, the court’s most frequent swing vote.
The Gorsuch battle has not generated as much interest or concern among liberal organizations as among conservative groups, which have spent nearly $10 million on a television ad campaign designed to pressure moderate Democrats.
Carrie Severino, chief counsel of the pro-Gorsuch Judicial Crisis Network, which is bankrolling the multimillion-dollar ad campaign, said Schumer and Democrats are promoting a “historic level of gridlock.” She said her conservative organization has been opposed to judicial filibusters in both Republican and Democratic administrations and that only Democrats have ever used threats of a filibuster against Republican nominees.
JCN’s ad campaign appeared to help convince two moderate Democratic senators, Heidi Heitkamp (D-N.D.) and Joe Manchin III (D-W.Va.), last week to say that they will support Gorsuch. On Sunday, Sen. Joe Donnelly (D-Ind.), also targeted by JCN’s effort, became the third Democrat to announce support for Gorsuch. but another moderate, Sen. Jon Tester (D-Mont.), announced he would vote against Gorsuch and support the filibuster because, “I cannot support a nominee who refuses to answer important questions.” In all, 10 Democrats facing reelection next year in states that Trump carried in the November election have been targeted by the ad campaign backing Gorsuch.
The decisions by Heitkamp and Manchin earned swift rebukes from liberal organizations. NARAL Pro-Choice America, an abortion rights group that helps mobilize Democratic voters, warned that it would not endorse any Democrat who supports Gorsuch. On Sunday, the Progressive Change Campaign Committee, a liberal political group that campaigns for Democratic candidates, ran full-page ads in North Dakota and West Virginia newspapers criticizing the senators’ choice.
That pressure may have been a factor for Sen. Claire McCaskill (D-Mo.), who has also been targeted by JCN but said on Friday that she will vote against Gorsuch. In an essay to constituents, she said it had been “a really difficult decision for me.”
Another potential “yes” vote, Sen. Angus King (I-Maine), said on Sunday that he will not announce his decision until Tuesday or Wednesday, but suggested that he is leaning against Gorsuch.
Filibustering a Supreme Court nominee “doesn’t strike me as out of line with Senate tradition,” King told CBS’s “Face the Nation,” noting that during his four and a half years in office he has needed to cast votes to end filibusters 400 times “on all matter of big and small things.”