Donald Trump is casting his newly minted Supreme Court nominee Neil Gorsuch into a bitterly divided Senate where frustrated Democrats vowed a vigorous review of the president’s choice, citing their concerns about his deeply conservative views and his willingness to check Trump’s aggressive use of executive power.
Democrats’ deep initial skepticism signals the intense confirmation fight to come, just as they’re battling Trump and other Republicans over a controversial executive order on immigration that resulted in Trump firing the acting U.S. attorney general.
“The burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream and, in this new era, willing to vigorously defend the Constitution from abuses of the executive branch,” Senate Democratic leader Chuck Schumer said in a statement. “Given his record, I have very serious doubts about Judge Gorsuch’s ability to meet this standard.”
Democrats in theory could have enough votes to block Gorsuch, since the 52 Republicans are eight shy of the 60 needed to advance the nomination — unless Republicans take the explosive step of unilaterally changing the Senate’s rules to require a simple majority. But it would be an extraordinary step for Democrats to reject a Supreme Court nominee so early in a presidency, barring any unexpected revelations.
In addition to Democrats’ lingering resentment over the 11-month Republican blockade last year of Merrick Garland, former President Barack Obama’s pick to fill the vacancy caused by Justice Antonin Scalia’s death, some liberal groups have been pushing hard for a complete filibuster of almost any Trump pick.
Democratic Senator Jeff Merkley of Oregon has said he would filibuster whoever Trump picked; and Elizabeth Warren of Massachusetts, a harsh critic of the president, said she’ll oppose Gorsuch’s confirmation.
“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,” Merkley said in a statement after the announcement Tuesday.
But Democrats may find strong reasons to seriously consider — and eventually approve — Trump’s pick. The 60-vote threshold needed to advance a high-court pick in the Senate is the most powerful tool the Democrats have to influence the choice. And they may want to make sure the filibuster is in place if Trump gets the chance to fill another vacancy during his presidency.
Either way, Majority Leader Mitch McConnell is likely to come under strong pressure to change the Senate rules if Democrats block Gorsuch.
“I hope members of the Senate will again show him fair consideration and respect the result of the recent election with an up-or-down vote on his nomination,” McConnell said in a statement.
Republican Lindsey Graham of South Carolina, a frequent Trump critic, also praised Gorsuch as “the most qualified guy” one could choose.
“He’s going to get confirmed,” Graham said in an interview. “And it would be a huge mistake to have to change the rules over this.”
But Democrat Patrick Leahy of Vermont, a senior member of the Senate Judiciary Committee, blasted Trump for having “outsourced” the selection process to conservative interest groups.
“From my initial review of his record, I question whether Judge Gorsuch meets the high standard set by Merrick Garland,” Leahy said. “And with the ideological litmus test that President Trump has applied in making this selection, the American people are justified to wonder whether Judge Gorsuch can truly be an independent justice.”
Dick Durbin of Illinois, the No. 2 Senate Democrat, said Tuesday, “These executive orders have really pushed to the limit of the relationship between us.”
Several liberal Democrats went much further, rejecting Gorsuch outright.
“The Gorsuch nomination represents a breathtaking retreat from the notion that Americans have a fundamental right to constitutional liberties, and harkens back to the days when politicians restricted a people’s rights on a whim,” Ron Wyden of Oregon said in a statement. “No senator who believes that individual rights are reserved to the people, and not the government, can support this nomination.”
Several moderates suggested they were open to considering Gorsuch, including Democrat Joe Manchin of West Virginia and independent Angus King of Maine.
Gorsuch’s August 2006 confirmation to his current seat on the 10th U.S. Circuit Court of Appeals was unanimous. Yet that unified bipartisan consent belies a tough task ahead in a Senate that has changed significantly in the years since the 49-year-old jurist last appeared before lawmakers.
Only 41 of the Senate’s 100 lawmakers were in the Senate when Gorsuch was named to the appellate court, so the administration can’t bank on old impressions.
What’s more, a Senate confirmation process that was acrimonious back then is much more so today. Democratic Majority Leader Harry Reid in 2013 forced a vote eliminating filibusters on all nominees except those to the high court, after Republicans worked to block many of Obama’s executive nominees and judges.
More bitterness erupted last year after Garland’s nomination was rebuffed without any consideration by Republicans who said the next president should get to make the pick. Many Democrats said this week that partly because of that, they can’t rule out subjecting the nominee to a 60-vote filibuster threshold.
Senator Dianne Feinstein of California, the top Democrat on the Judiciary Committee, said Republicans’ passive resistance to Garland was “a big deal,” and said that she’s waiting to decide how to proceed.
“Republicans took away Barack Obama’s final year, in terms of appointing a man who would have been a very good Supreme Court justice,” she said.
McConnell has been sending mixed signals about whether he may permanently alter Senate rules as Reid did, thereby ending filibusters for high-court nominees as well. While raising the prospect of doing so, he has been critical of Reid’s willingness to do that by using the “nuclear option” — changing Senate rules with just 51 votes instead of 67.
Earlier Tuesday, he said Merkley’s threat to filibuster the new nominee would likely mean that 60 votes would be needed.
White House Press Secretary Sean Spicer said the administration is confident that it can get nine Democrats to support the nominee, enough votes to overcome delaying tactics if Democrats use them.
“I think the criteria in terms of academia, background, time on the bench, the expertise in criteria meets the intent of both Republicans and Democrats,” Spicer said.
Groups on both sides of the fight have already been gearing up for the nomination.
Concerned Veterans for America, part of the network funded by the conservative Koch brothers, intends to take a lead role in drumming up grassroots engagement in support of Gorsuch.
As soon as Gorsuch was announced, organizers began running paid Facebook, Twitter and search ads prompting people to call their senators to express support for him, said the group’s executive director, Mark Lucas. Organizers will activate their 3.2 million supporters using direct mail, door knocks, phone calls and digital advocacy, he said.
On the other side, abortion rights groups quickly blasted Trump’s choice.
“Gorsuch represents an existential threat to legal abortion in the United States and must never wear the robes of a Supreme Court justice,” Ilyse Hogue, the president of Naral Pro-Choice America, said in a statement. “Naral and our 1.2 million member-activists call on the Senate to reject Trump’s nominee using any and all available means, including the filibuster.”
Liberal groups, energized by the success of the women’s marches the day after Trump’s inauguration, pledged an all-out battle against Gorsuch.
“We plan a mass mobilization to defeat Judge Neil Gorsuch,” said Nan Aron, president of the Alliance for Justice Action Campaign. She said his record would roll back a range of protections including women’s access to health services and LGBT equality.