• Facebook
  • Twitter
  • Subscribe
  • RSS

Senate Democratic Leader Schumer Vows To Filibuster Gorsuch Nomination

Neil Gorsuch

On the same day that the Senate Judiciary Committee was holding its last day of hearings on the nomination of Judge Neil Gorsuch to the Supreme Court, Senate Minority Leader Chuck Schumer was announcing that he intended to lead a filibuster of Gorsuch’s nomination:

Senate hearings on Supreme Court nominee Neil Gorsuch ended Thursday on a confrontational note, with the body’s top Democrat vowing a filibuster that could complicate Gorsuch’s expected confirmation and ultimately upend the traditional approach to approving justices.

Senate Minority Leader Charles E. Schumer (D-N.Y.) said he will vote no on President Trump’s nominee and asked other Democrats to join him in blocking an up-or-down vote on Gorsuch.

Under Senate rules, it requires 60 votes to overcome such an obstacle. Republicans eager to confirm Gorsuch before their Easter recess — and before the court concludes hearing the current term of cases next month — have only 52 senators.

Republicans have vowed Gorsuch will be confirmed even if it means overhauling the way justices have long been approved. Traditionally, senators can force the Senate to muster a supermajority just to bring up the nomination of a Supreme Court justice. If that is reached, the confirmation requires a simple majority.

In a speech on the Senate floor, Schumer said: “If this nominee cannot earn 60 votes — a bar met by each of President Obama’s nominees and George Bush’s last two nominees — the answer isn’t to change the rules. It’s to change the nominee.”

The Democrats’ liberal base has been pressuring senators to block Trump’s nominees across the government. But Schumer stopped short of saying that his entire Democratic caucus would join him in opposition to Gorsuch, leaving political space for some Democrats to find ways to work with Republicans.

Democrats may not have the votes to block Gorsuch, 49, who has been on the Denver-based U.S. Court of Appeals for the last decade and was nominated to fill the Supreme Court seat left vacant since Justice Antonin Scalia died unexpectedly in February 2016.

Several Democrats, especially those facing upcoming reelection battles in states that Trump won, are facing opposition from conservative organizations bankrolling a multimillion-dollar ad campaign designed to bolster Gorsuch.

There are also competing views among Democrats about whether to filibuster Gorsuch’s nomination — which could provoke the Republican majority to rewrite the rules — or instead avoid confrontation and preserve the filibuster threat for the future. Retaining the filibuster could force Trump to select a relatively moderate nominee if in the coming years he gets a chance to replace a second Supreme Court justice.

Among recent Supreme Court nominees, the 60-vote threshold has not caused a problem. President Barack Obama’s choices of Sonia Sotomayor and Elena ­Kagan each received more than 60 confirmation votes. Samuel A. Alito Jr., chosen by President George W. Bush, was confirmed 58 to 42 in 2006, but 72 senators voted to defeat a possible filibuster and allow his confirmation vote to go forward. Indeed, only Alito — among the last 16 Supreme Court nominees — was forced to clear the supermajority hurdle to break a filibuster.

In announcing his confrontational approach, Schumer said that Gorsuch “was unable to sufficiently convince me that he’d be an independent check” on Trump. Schumer said later that the judge is “not a neutral legal mind but someone with a deep-seated conservative ideology,” hand-picked for Trump by conservative legal groups.

Thomas C. Goldstein, a Supreme Court practitioner and co-founder of SCOTUSblog, said that Democrats on the Senate Judiciary Committee did not present a compelling case that Gorsuch was either an illegitimate nominee or that he was outside the conservative mainstream.

“None of the Democrats set the table” for a filibuster, Goldstein said. He speculated that one option for some Democrats would be to allow an up-or-down vote, and then to vote against confirmation.

In addition to Schumer, Sens. Thomas R. Carper (D-Del.), Robert P. Casey Jr. (D-Pa.) and Ron Wyden (D-Ore.) announced Thursday that they would filibuster Gorsuch. Casey is one of 10 Democratic senators running next year in a state that Trump won.

The Judicial Crisis Network, which is spending at least $10 million on television ads to persuade Democratic senators to support Gorsuch, called Casey and other Democrats opposing Gorsuch “totally unreasonable” because “they will obstruct anyone who does not promise to rubber stamp their political agenda from the bench.”

Senior Republicans have vowed that Gorsuch will be confirmed no matter what — a veiled threat to Democrats that they might use the nuclear option to change the way senators confirm Supreme Court justices.

“If Judge Gorsuch can’t achieve 60 votes in the Senate, could any judge appointed by a Republican president be approved with 60 or more votes in the Senate?” Senate Majority Leader Mitch McConnell (R-Ky.) said this week.

Much of the Democratic resistance to Gorsuch centers on the GOP’s decision last year to block consideration of Judge Merrick Garland, Obama’s choice to replace Scalia.

But moderate Democrats have said they are hoping that the two parties can come to an agreement that leads to Gorsuch’s confirmation and the preservation of current Senate traditions.

Sen. Joe Manchin III (D-W.Va.), seen as the Democrat most likely to support Gorsuch, said he needed to hear more from the nominee but warned Democrats against risking the deployment of the nuclear option.

“I haven’t completely made up my mind. I’m going to go talk to him next week; then I’ll make my decision,” Manchin said. “But I just think the Senate is on a slippery slope.”

On some level, Schumer’s announcement is hardly a surprise. Even before Gorsuch’s hearings began activist groups from across the Democratic base were turning out in opposition to his confirmation, with most of them calling on Senate Democrats to do anything they could to stop his confirmation. In part, of course, this is due to the resentments that many Democrats continue to feel over the Senate Republicans successful effort to block the nomination of Merrick Garland last year, an effort which made this early appointment by President Trump possible. For many Democratic activists, and some Senators, the opportunity to exact some form of payback, even if it ultimately only ends up delaying the nomination for a short period of time, is worth whatever price they might pay for doing so. For others, of course, the opposition is due simply to the fact that this is an appointment by a Republican President, much like many conservative activist groups reflexively opposed the nomination of Sonia Sotomayor and Elena Kagan during the Obama Administration. Because of that pressure from the base, Schumer and the Senate Democrats are at least obligated through the motions of trying to stop Gorsuch’s nomination notwithstanding the fact that, as I noted in my recap of his two days of testimony — see here and here — he came out of his two days of questioning with the appearance of being highly qualified for the position he’s been nominated for and someone who has the potential to be a fine Supreme Court Justice notwithstanding the fact that there will most likely be decisions he will reach that I will disagree with. For better or worse, though, qualifications don’t matter much when it comes to Supreme Court nominations anymore, and the era of the politicized confirmation hearing that began at least with Robert Bork’s nomination thirty years ago this year is hear to stay for the time being.

In any case, while Schumer’s announcement is unsurprising, what’s unclear is whether or not it will work. First of all, it is too early to tell whether or not he would have a united caucus on a Cloture motion to block Gorsuch’s nomination from proceeding to a final vote. In the past, most Supreme Court nominations have sailed through the cloture round with a comfortable bipartisan majority in favor of allowing a final vote. This was true even when it turned out that the final vote was much closer because many Senators who ultimately ended up voting against a nomination nonetheless voted to invoke cloture to allow debate to end and the matter to be voted up or down on the merits. If Republicans can find eight Democrats who support that idea, whether or not they ultimately end up voting in favor of Gorsuch, then they’ll easily get over the 60 vote threshold and be able to confirm Gorsuch easily. If they can’t find those eight votes, then both parties will be faced with a stark choice. For Republicans, it will be a choice between losing the nomination and employing the so-called ‘nuclear option’ used by former Majority Leader Harry Reid to change the filibuster rules for lower court Judges and Executive Branch nominees. The downside to eliminating the filibuster, of course, is that this would limit the GOP’s options in the future if it is in the minority and there’s a Democrat in the White House seeking to nominate a very liberal Judge who would replace a Justice such as Anthony Kennedy. For Democrats, the choice is between letting Gorsuch get through to a final vote and daring the GOP to nuke the filibuster, meaning that they would be powerless to stop a future Trump nomination in the event of a retirement by a Justice such as Anthony Kennedy, Stephen Breyer, or Ruth Bader Ginsburg. It’s impossible to know how all of this will play out in the end, but it will certainly be fascinating to watch.

Related Posts:

  • None Found

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. MBunge says:

    Filibustering a conservative pick to replace a liberal Justice, or vice versa, may be a terrible way to go about things but there’s a least an obvious logic to it.

    If you filibuster the conservative pick to replace Scalia, you’re essentially saying that NO ONE is ever going to be confirmed to the Supreme Court again.

    Mike

    Like or Dislike: Thumb up 0 Thumb down 0

  2. MarkedMan says:

    I understand the frustration over the Republican sleaze ball tactics. But Gorsuch is probably as good as we can hope for. Dems can’t be the party of mindless idiocy like the Republicans. They need to get the best deal they can, and Gorsuch is probably it.

    Like or Dislike: Thumb up 0 Thumb down 0

  3. reid says:

    @MBunge: You’re completely ignoring the Merrick Garland angle. If that hadn’t happened, I think Gorsuch would go through with little problem. (He doesn’t seem that horrible to me, though I’m sure he’s very conservative.) One could as easily state that if the Senate refuses to even hear a President’s nomination, then no one is ever going to be confirmed again. Personally, I thought that was a ridiculous abuse of power, and I would hope that something could be done so that Republicans aren’t rewarded for it. In the end, it will benefit them, though. Sad.

    Like or Dislike: Thumb up 0 Thumb down 0

  4. grumpy realist says:

    I usually vote Democratic, but I think that this is a heck of a lot of effort which could be used more wisely elsewhere.

    And, as said, SCOTUS judges often end up being highly independent, much to the surprise of those who have plonked them into their seats. (I remember a trademark decision where Scalia basically brought the boom down on the company who was arguing for it, pointing out that there was an already-existing form of IP called a Design Patent, and if they couldn’t be bothered to get protection that way he wasn’t going to allow them a second bite at the apple by shoving it into a trademark “trade dress” case.)

    Like or Dislike: Thumb up 0 Thumb down 0

  5. Jc says:

    What was it like, 315 days they delayed the Garland confirm? I think it would be fair to do the same for Gorsuch. Then confirm him on the next day, if the GOP does not nuke the filibuster prior to then…

    Like or Dislike: Thumb up 0 Thumb down 0

  6. pylon says:

    I support this move. I think its appropriate to refuse to confirm a president’s SCOTUS appointee in the last year of that president’s term.

    Like or Dislike: Thumb up 0 Thumb down 0

  7. Lit3Bolt says:

    For better or worse, though, qualifications don’t matter much when it comes to Supreme Court nominations anymore, and the era of the politicized confirmation hearing that began at least with Robert Bork’s nomination thirty years ago this year is hear to stay for the time being.

    Oh please. The kabuki theater that judges are apolitical beings needs to come to an end. The reason SCOTUS picks matter so much now is that Congress has abdicated almost all policymaking duties, forcing the courts to dictate the direction of the nation.

    Neil Gorsuch is a conservative princeling and has been for all of his life. He’s been injected with Federalist society money and will be expected to deliver in his role with corporate-friendly rulings.

    This isn’t about “finding qualified people.” Merrick Garland was the ideal apolitical, qualified judge. But Republicans and conservatives don’t want that. This is about keeping certain Americans wealthy and keeping corporate feudalism in place. He will be the ultimate anti-consumer judge.

    And guess what? Trump has 123 other federal benches to fill. Even if he’s impeached over Russia, Doug and any other conservative will argue that these Federalist society corporate clones will be legitimate picks.

    Like or Dislike: Thumb up 0 Thumb down 0

  8. al-Ameda says:

    @MarkedMan:
    @grumpy realist:
    I’m with you two on this. I definitely think that Gorsuch is about the the best that liberals could’ve expected from a rich trash dilettante like Trump. Me? I’d be more concerned about the next time Trump gets a chance to nominate someone to the Court. Plus, the only people are happy with giving McConnell the opportunity to gleefully suspend the filibuster are people who are not accustomed to being a part of a majority party

    Like or Dislike: Thumb up 0 Thumb down 0

  9. gVOR08 says:

    @Lit3Bolt:

    This is about keeping certain Americans wealthy and keeping corporate feudalism in place.

    President Eisenhower wrote a letter to his brother:
    Should any political party attempt to abolish social security, unemployment insurance, and eliminate labor laws and farm programs, you would not hear of that party again in our political history. There is a tiny splinter group, of course, that believes you can do these things. Among them are H. L. Hunt (you possibly know his background), a few other Texas oil millionaires, and an occasional politician or business man from other areas.4 Their number is negligible and they are stupid.

    They are still stupid, but their number is now legion, and increasing. Many contribute to the Federalist Society. You want a depressing read, get Piketty, Capital in the Twenty-First Century. He makes it clear that the period after WWII was a golden aberration. Labor dominated for a few decades because so much capital had been destroyed in the World Wars. We are now revering to the norm, dominance by inherited capital. Dominance of politics by the wealthy is only going to get worse. In several decades we’ll look like czarist Russia. A fabulously wealthy few sitting on a mass of poor. Contra Doug, the only freedom being protected by allowing largely unlimited money in politics is the freedom of the billionaires to control the country.

    Like or Dislike: Thumb up 0 Thumb down 0

  10. Just 'nutha ig'nint cracker says:

    I also see Gorsuch as a fairly reasonable choice, but I think that it is possible that Schumer and company (or maybe Schumer alone, who knows) might be betting that the Dems can pick up 2 or 3 seats in the mid-term election (not an unreasonable possibility considering how well the new admin has be going so far) and looking for the GOP to go nuke the filibuster. Both happening would significantly change the shape of the current SC game (which I am not a fan of). Not a terrible risk considering that a nuking of the filibuster is probably coming sooner or later.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. Gustopher says:

    The President has an obligation to nominate someone who can win broad support.

    The fact that these are extremely polarized times does not remove that obligation. The fact that Trump was part of making these times so polarizing also does not remove that obligation.

    I have no doubt that if Trump sits down with Chuck Schumer and Mitch McConnell he can close a deal on a mainstream, centrist-conservative that will be able to be seated with 80-90 votes in his favor. Trump is good at making deals, right?

    Like or Dislike: Thumb up 0 Thumb down 0

  12. An Interested Party says:

    Let the games begin.

    The game began when Republicans refused to do anything with the Garland nomination and puked up their ridiculous excuses…

    Like or Dislike: Thumb up 0 Thumb down 0

  13. Todd says:

    I think that Judge Gorsuch is well qualified, if much too conservative for my liking. In normal times, he should be confirmed. But these are not normal times.

    I doubt that the Democrat’s filibuster will work … if we define working as stopping Gorsuch from being seated on the Supreme Court; and it definitely won’t work if we define working as stopping any conservative from being seated. But I do think that strategically they need to filibuster anyway.

    They need to force the Republicans to scrap the filibuster.

    The main reason is that it’s naive and foolish to believe that they won’t do it eventually anyway … especially if they have a chance at a true conservative majority on the court. Democrats who think they can trust a Republican promise not to eliminate the filibuster next time if they let Judge Gorsuch go through now really haven’t been paying attention these past 6 years. Republicans have no incentive to follow norms or honor agreements; because over and over again, they’ve paid no electoral penalty for breaking them.

    The other reason to filibuster is that there is actually a slight chance of finding 3 Republicans who won’t vote to eliminate the filibuster … this time. I think the possibility of finding those Republicans in a scenario where they want to replace a liberal Justice’s spot will be even lower.

    I’m normally a pragmatist, in favor of compromise and deal making. But deal making only works when both sides are trustworthy … the Republicans have shown us too many times that it would be foolish to take them at their word.

    Like or Dislike: Thumb up 0 Thumb down 0

  14. Todd says:

    @pylon:

    I support this move. I think its appropriate to refuse to confirm a president’s SCOTUS appointee in the last year of that president’s term.

    I know that comment was at least a little bit tongue in cheek, but Democrats being Democrats, they might actually need a plausible reason (other than just the politics) to try to delay or stop President Trump’s pick. The fact that his inner circle (and possibly the President himself) is being investigated by the FBI should, when viewed objectively, be just such a very plausible reason.

    Like or Dislike: Thumb up 0 Thumb down 0

  15. Moosebreath says:

    @Todd:

    “The main reason is that it’s naive and foolish to believe that they won’t do it eventually anyway … especially if they have a chance at a true conservative majority on the court. Democrats who think they can trust a Republican promise not to eliminate the filibuster next time if they let Judge Gorsuch go through now really haven’t been paying attention these past 6 years. Republicans have no incentive to follow norms or honor agreements; because over and over again, they’ve paid no electoral penalty for breaking them.”

    I can’t upvote this enough.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. George Johnson says:

    Wasn’t it just a few years ago that Dem’s wanted to outlaw the use the filibuster? Times have changed, have they not?

    Like or Dislike: Thumb up 0 Thumb down 0

  17. George Johnson says:

    @An Interested Party: They just took a page from Biden’s playbook.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. An Interested Party says:

    They just took a page from Biden’s playbook.

    As I wrote, ridiculous excuses…certainly they would have more integrity (yes, I know, an impossible goal for them) if they just admitted this was a straight-up power grab rather than resorting to such bullshit…

    Like or Dislike: Thumb up 0 Thumb down 0

  19. Guarneri says:

    Thanks for the belly laughs, guys and gals. Even handed, fair minded Democrats caught up in an evil Republican cabal. Where’d you get the mushrooms? Personally, I think it’s the Russians who forced Trump to nominate the guy……… Yeah, that’s it. He’s Putins pick.

    By the way, who was it who set this in motion again? The Nevada guy who got mugged, I mean tripped while working out? Must have been a Republican……………and I have it on good authority (who I can’t name) that Reid only did it because Putin has pictures of him doing the nasty with Natasha Fatale.

    Like or Dislike: Thumb up 0 Thumb down 0

  20. An Interested Party says:

    By the way, who was it who set this in motion again?

    Ahh…there’s that lack of integrity yet again…the fact of the matter is that Republicans, in control of the White House as well as the Senate, can and will do anything to get their nominee on the Supreme Court, no matter what anyone did in the past…the idea that Republicans would not push through their nominee by any means necessary if only Harry Reid had not previously changed some rule is absurd…

    Like or Dislike: Thumb up 0 Thumb down 0

  21. Lit3Bolt says:

    @Todd:

    I’m normally a pragmatist, in favor of compromise and deal making. But deal making only works when both sides are trustworthy … the Republicans have shown us too many times that it would be foolish to take them at their word.

    This. A Republican’s word is worth nothing these days.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. mannning says:

    @Lit3Bolt:

    “A Republican’s word is worth nothing these days.”

    So you know every Republican, and have proven that each one has broken his word? I doubt it. That is just about the same as saying “all politicians break their word, which, unfortunately, would include the current crop of Dems.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. Lit3Bolt says:

    @mannning:

    Ok fine.

    Mitch McConnell’s, Paul Ryan’s, Trump’s, and Pence’s word is worth nothing these days. That’s the entire Republican Party leadership. Should I include all the Limbaugh, Drudge, and Fox News and Breitbart surrogates as well?

    If Republicans don’t want their character impugned, stop voting for these characterless voids in suits.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. mannning says:

    @Lit3Bolt:

    What constitutes a broken word in your opinion? It seems that when there is a legislative failure, people roll out the “broken word” meme just to assuage their own egos. Of course, no dem would pass up the opportunity to denigrate Trump, that is a given.

    In my opinion, a miscalculation is not the same thing as a broken word, and the Republican leadership certainly did miscalculate in this instance. The tension between the rank and file Republicans and the Conservatives is nothing new, but it did lead to this failure. It is likely that the Conservatives wanted an all or nothing bill and to hell with the limits of reconciliation, and the idea of phases, which would have put the entire onus on the Senate to pass or fail, or to come up with changes they could accept. Whether there could have been an ultimate 60 yea votes in the Senate is a dubious proposition at best, however. Healthcare is now scrambled eggs.

    Like or Dislike: Thumb up 0 Thumb down 0