Dems in bind over Trump court pick

Senate Republicans voiced confidence Wednesday that they will have the votes to confirm President TrumpDonald John TrumpTom Arnold claims to have unreleased 'tapes' of Trump Cohen distances himself from Tom Arnold, says they did not discuss Trump US military indefinitely suspends two training exercises with South Korea MORE’s nominee for the Supreme Court, as Democrats appeared divided over how to handle the pick.

Senate Democratic Leader Charles SchumerCharles (Chuck) Ellis SchumerDonald Trump Jr. headlines Montana Republican convention Montana's environmental lobby teams with governor to kill 600 jobs Dems allow separation of parents, children to continue, just to score political points MORE (N.Y.) in a floor speech indicated that he has serious concerns about Neil Gorsuch, Trump’s pick to replace the late Justice Antonin Scalia.

But Schumer stopped short of promising a filibuster against Gorsuch, saying instead that Trump’s nominee should meet a 60-vote threshold to get on the court.

“We Democrats will insist on a rigorous but fair process. There will be 60 votes for confirmation,” he said from the Senate floor. “There will be 60 votes for confirmation.”

Sen. Jeff MerkleyJeffrey (Jeff) Alan MerkleyDem senator: If Nielsen doesn't reunite families, 'she should resign' Senate Dems call for Judiciary hearing on Trump's 'zero tolerance' GOP lawmaker compares cages for migrant children to chain-link fences on playgrounds MORE (Ore.), who began the week promising a filibuster against any nominee from Trump, was on Wednesday the only Democratic senator explicitly voicing support for using procedural tools to stop Gorsuch, a judge on the 10th U.S. Circuit Court of Appeals with a sterling academic and legal resume.

A handful of other Democrats, including Sens. Sherrod BrownSherrod Campbell BrownThe American economy is stronger than ever six months after tax cuts Dem senators introduce bill to ban controversial voter purges The Hill's Morning Report — Sponsored by PhRMA — GOP lawmakers race to find an immigration fix MORE (Ohio), Elizabeth WarrenElizabeth Ann WarrenOn The Money — Sponsored by Prudential — Trump floats tariffs on European cars | Nikki Haley slams UN report on US poverty | Will tax law help GOP? It's a mystery Bill to protect work licenses of student loan debtors is welcome development Federal court rules consumer bureau structure unconstitutional MORE (Mass.), Ron WydenRonald (Ron) Lee WydenScrutiny ramps up over Commerce secretary's stock moves Hillicon Valley: Justices require warrants for cellphone location data | Amazon employees protest facial recognition tech sales | Uber driver in fatal crash was streaming Hulu | SpaceX gets contract to launch spy satellite On The Money — Sponsored by Prudential — Supreme Court allows states to collect sales taxes from online retailers | Judge finds consumer bureau structure unconstitutional | Banks clear Fed stress tests MORE (Ore.) and Kirsten GillibrandKirsten Elizabeth GillibrandOvernight Defense: Defense spending bill amendments target hot-button issues | Space Force already facing hurdles | Senators voice 'deep' concerns at using military lawyers on immigration cases Senators 'deeply troubled' military lawyers being used for immigration cases Senate moving ahead with border bill, despite Trump MORE (N.Y.), say they will oppose him. But no other Democrats have so far used Merkley’s language.

It’s possible that will change, but Democratic senators on Wednesday appeared to be in no hurry to make promises.  

Other Democrats say they are keeping an open mind on Gorsuch, even liberals such as Senate Democratic Whip Dick DurbinRichard (Dick) Joseph DurbinThe Hill's Morning Report — Sponsored by PhRMA — Immigration drama grips Washington Senate Gang of Four to meet next week on immigration Live coverage: High drama as hardline immigration bill fails, compromise vote delayed MORE (Ill.), who said he would support a hearing and vote on his nomination.

Ten Democrats representing states won by Trump last year are up for reelection in 2018 and will come under certain attack from Republicans for blocking Gorsuch on procedural grounds. Trump carried five of those states by double digits.

Sen. Joe ManchinJoseph (Joe) ManchinThe Hill's Morning Report — Sponsored by PhRMA — Trump caves under immense pressure — what now? Election Countdown: Family separation policy may haunt GOP in November | Why Republican candidates are bracing for surprises | House Dems rake in record May haul | 'Dumpster fire' ad goes viral Manchin up 9 points over GOP challenger in W.Va. Senate race MORE (W.Va.), one of the red-state Democrats up for reelection, told reporters before meeting with Gorsuch that he is looking for a jurist “that follows the law,” following up on his pledge from the day before not to filibuster “for the sake of filibustering.”

Many Democrats are still sore over the way Republicans treated Merrick Garland, whom former President Obama nominated to fill Scalia’s seat in early 2016. Republicans never gave Garland a hearing or a vote.

At the same time, the party seems skeptical of pulling out every tool to block Gorsuch, despite the urging of many outside liberal groups.

Republicans across the board have praised Gorsuch’s record, and his home-state senator, Cory GardnerCory Scott GardnerSenate moving ahead with border bill, despite Trump 13 GOP senators ask administration to pause separation of immigrant families Sessions floats federal law that would protect states that decriminalize marijuana MORE (R-Colo.), predicted Wednesday that the entire GOP conference would back him.

“I think he’s going to have a tremendous amount of support from Democrats as well,” he said after meeting with the nominee.

Gardner was quick to point out the political stakes for red-state Democrats.

“If your state voted for Donald Trump and you’re obstructing Donald Trump’s Supreme Court nominee, there’s going to be a penalty to be paid,” said Gardner, chairman of the National Republican Senatorial Committee (NRSC), which will be targeting vulnerable Democrats next year.

Vice President Pence accompanied Gorsuch to Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellPolitical figures pay tribute to Charles Krauthammer Charles Krauthammer dies at the age of 68 Overnight Energy: EPA declines to write new rule for toxic spills | Senate blocks move to stop Obama water rule | EPA bought 'tactical' pants and polos MORE’s (R-Ky.) office for his first meeting of the day. Gorsuch also sat down with Senate Judiciary Committee Chairman Chuck GrassleyCharles (Chuck) Ernest GrassleyGrassley wants to subpoena Comey, Lynch after critical IG report Senate Dems call for Judiciary hearing on Trump's 'zero tolerance' Republicans agree — it’s only a matter of time for Scott Pruitt MORE (R-Iowa) and Senate Republican Whip John CornynJohn CornynSenate moving ahead with border bill, despite Trump GOP senators introduce bill to prevent family separations at border Senate GOP tries to defuse Trump border crisis MORE (Texas).

Grassley says he plans on holding confirmation hearings in six weeks, a timeline that Democrats are not pushing back on yet.

A senior Democratic aide said Democrats would object to Grassley’s timeline if Gorsuch were slow in turning over documentation for review, as some of Trump’s Cabinet nominees have been.

  While partisanship in the Senate has become increasingly bitter in recent years, filibusters of Supreme Court nominees are rare. 

Senate leaders have moved only four times to end filibusters of Supreme Court nominations — in 1968, 1971, 1986 and 2006, according to a Congressional Research Service report from October 2015.

There’s debate on whether those few examples qualify as judicial filibusters. Former Senate Majority Leader Mike Mansfield (D-Mont.) filed a cloture motion to end dilatory debate on the nomination of William Rehnquist to serve as an associate justice on the court in 1971. Even though the motion failed, Rehnquist still won confirmation on the same day.

A decade ago, a bipartisan group of senators known as the Gang of 14 came to an agreement that judicial nominees should only be filibustered in “extraordinary circumstances,” a description that does not seem to apply to Gorsuch. 

Sen. Claire McCaskillClaire Conner McCaskillThe American economy is stronger than ever six months after tax cuts The Hill's Morning Report — Sponsored by PhRMA — Immigration drama grips Washington Conservative group calls for ethics probe into McCaskill’s use of private plane MORE (D-Mo.), who is running for reelection, blamed McConnell’s obstructionist tactics during the Obama administration for destroying the chamber’s tradition of comity.

“Things have changed around here. There was a new era of obstructionism ushered in by Mitch McConnell. He’s the one who has to account for changing the dynamics of the Senate, maybe for all time,” she said.

But vulnerable Democrats will have to walk a fine line on the nomination, knowing that if they vote to block Trump’s pick despite his impressive credentials, it will become a campaign issue next year.

“There’s a general dislike for the filibuster, and I think the president nominated someone who is easily defended,” said Sen. Jerry MoranGerald (Jerry) MoranFormer USA Gymnastics CEO pleads Fifth at hearing GOP, Trump at odds on pardon power Lawmakers request meeting with Amtrak CEO over funding for route MORE (R-Kan.), who served as NRSC chairman in 2014, when Republicans captured the Senate majority. “Those two things combined make it difficult to rationalize a filibuster.”

“I would guess this becomes a significant political issue in states,” he added.

Conservative groups led by the Judicial Crisis Network (JCN) say they will spend “tens of millions” of dollars to support Gorsuch. The JCN has a $10 million budget to spend right out of the gate, and Carrie Severino, the group’s chief counsel and policy director, says it will spend more if necessary.

That’s why Democrats in pro-Trump states say they will give Gorsuch a fair review.

“I’m going to bring him in, interview him and make a decision on whether I’m going to support him or not based on what I read about him in that interview,” said Sen. Jon TesterJonathan (Jon) TesterDonald Trump Jr. headlines Montana Republican convention Overnight Defense: Trump orders Pentagon to help house immigrant families | Mattis says 'space force' needs legislation | VA pick gets hearing date Election Countdown: Family separation policy may haunt GOP in November | Why Republican candidates are bracing for surprises | House Dems rake in record May haul | 'Dumpster fire' ad goes viral MORE (D-Mont.), who is up for reelection in 2018.

But Tester, along with other vulnerable Democrats such as Manchin and McCaskill, said he’s not ruling out backing a filibuster later in the spring.

Jordain Carney contributed.