Dems in bind over Trump court pick

Senate Republicans voiced confidence Wednesday that they will have the votes to confirm President Trump’s nominee for the Supreme Court, as Democrats appeared divided over how to handle the pick.

Senate Democratic Leader Charles SchumerCharles SchumerSenate Dems: We won't help pass additional health bills Gorsuch hearings: A referendum on Originalism and corporate power We must act now and pass the American Health Care Act 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 MerkleyJeff MerkleyDem senator accuses Trump of 'dangerous tilt towards authoritarianism' Overnight Regulation: Dems punch back in fight over CEO pay rule Bernie Sanders, Menendez 'troubled' by delay of CEO pay rule 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 BrownSenate Dem facing 2018 reelection to oppose Gorsuch RNC drops six-figure ad buy for Supreme Court, healthcare fight Overnight Finance: White House backs off stock market boasts as Dow, Nasdaq drop | Trump budget shifts costs to rural voters who elected him | Fight over CEO pay rule heats up MORE (Ohio), Elizabeth WarrenElizabeth WarrenSenate nixes Obama-era workplace safety rule Five takeaways from Labor pick’s confirmation hearing Warren: 'No confidence' in Trump's Labor pick MORE (Mass.), Ron WydenRon WydenOvernight Finance: US preps cases linking North Korea to Fed heist | GOP chair says Dodd-Frank a 2017 priority | Chamber pushes lawmakers on Trump's trade pick | Labor nominee faces Senate Dem senator: House Intel chairman may have revealed classified info US Chamber urges quick vote on USTR nominee Lighthizer MORE (Ore.) and Kirsten GillibrandKirsten GillibrandChelsea Clinton to be honored by Variety, Lifetime Ten years later, House Dems reunite and look forward Senate Dems introduce bill to rescind Trump border wall, immigration order 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 DurbinDick DurbinGorsuch rewrites playbook for confirmation hearings Gorsuch: I'm 'sorry' for ruling against autistic student Mattis on defense budget boost: 'America can afford survival' 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 ManchinJoe ManchinSenate Dems: We won't help pass additional health bills RNC drops six-figure ad buy for Supreme Court, healthcare fight Repeal of Obama drilling rule stalls in the Senate 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 GardnerRepeal of Obama drilling rule stalls in the Senate Colorado Dem at the center of Gorsuch confirmation fight Gorsuch sails on day one, but real test is Tuesday 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 TrumpDonald TrumpHarmful budget cuts won’t help GOP in 2018 and beyond McConnell’s gambit to save the Supreme Court paid off Tillerson to embassies: ID groups for tougher screening MORE 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 McConnellMitch McConnellMcConnell’s gambit to save the Supreme Court paid off Overnight Healthcare: High drama for ObamaCare vote | Freedom Caucus chair 'optimistic' about deal | Trump woos right High drama for ObamaCare vote MORE’s (R-Ky.) office for his first meeting of the day. Gorsuch also sat down with Senate Judiciary Committee Chairman Chuck GrassleyChuck GrassleyLive coverage: Day three of Supreme Court nominee hearing Live coverage: Day two of Supreme Court nominee hearing Grassley, CNN host spar over Trump wiretap claims MORE (R-Iowa) and Senate Republican Whip John CornynJohn CornynGOP senator: 'We still need to figure out what the president was talking about' on wiretapping Live coverage: Day two of Supreme Court nominee hearing Repeal of Obama drilling rule stalls in the Senate 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 McCaskillSenate Dems: We won't help pass additional health bills RNC drops six-figure ad buy for Supreme Court, healthcare fight Red-state Dems in Supreme Court pressure cooker 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 MoranJerry MoranGOP lawmakers lead way in holding town halls Yahoo reveals new details about security A guide to the committees: Senate 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 TesterJon TesterOvernight Defense: Pentagon chief urges Congress to approve budget boost | Senate fight over NATO addition Defense chief after Trump tweet: NATO doesn't track 'past money owed' Eye on 2018: Five special elections worth watching 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.