Democrats debate Supreme Court gamble

Democrats debate Supreme Court gamble
© Getty Images

Democrats could be taking a big risk if they filibuster President Trump’s Supreme Court nominee, Neil Gorsuch.            

Republicans have threatened to invoke the “nuclear option” to change the Senate rules so that Supreme Court nominees cannot be filibustered. After that, Gorsuch would only need 51 votes to get confirmed.

Since the rules change would apply to future Supreme Court nominees, it could ease the way for President Trump to later nominate a justice who is further to the right than Gorsuch — a possibility that is weighing on some Democrats.


Sen. Claire McCaskillClaire Conner McCaskillThe Hill's Morning Report - Biden tasks Harris on border; news conference today Missouri Senate candidate Eric Greitens tangles with Hugh Hewitt in testy interview The Hill's Morning Report - Presented by the National Shooting Sports Foundation - CDC news on gatherings a step toward normality MORE (Mo.) warned Democratic donors at a fundraiser on Sunday that filibustering Gorsuch could backfire on Democrats if “God forbid Ruth Bader Ginsburg dies, or Anthony Kennedy retires or Stephen Breyer has a stroke or is no longer able to serve.”

Ginsburg and Kennedy are in their 80s, and Breyer will be 79 in August. All three justices are reliably liberal votes.

“Then we’re not talking about [the late conservative Justice Antonin] Scalia for Scalia, which is what Gorsuch is, we’re talking about Scalia for somebody on the court who shares our values,” McCaskill said, according to audio The Kansas City Star obtained from the Missouri Republican Party.   

At the fundraiser McCaskill reportedly called Gorsuch “one of the better ones.”

McCaskill, who is up for reelection in 2018 in a state Trump won, stood by her remarks when questioned about them on Thursday.

“My words were very clear that it is obviously a really difficult situation — that both alternatives, I think, have a lot of danger,” she said. 

Trump’s short list for the Supreme Court included more controversial names, including Judges Diane Sykes and William Pryor, two staunch conservatives. Pryor, a judge on the 11th Circuit Court of Appeals, is an outspoken critic of Roe v. Wade.

Pryor once called the 1973 Supreme Court decision legalizing abortion nationwide the “worst abomination in the history of constitutional law.”   

But while some Democrats are fearful of a future court nominee, others say the party has ample reason to block Gorsuch in the here and now.

Gorsuch would not share his views on even widely accepted Supreme Court decisions like Brown v. Board of Education during his confirmation hearings, and liberal groups have attacked his record, saying his rulings have been favorable to special interests and big business. 

Senate Majority Leader Charles SchumerChuck SchumerTop academics slam Puerto Rico Self-Determination Act NY Times beclowns itself by normalizing court-packing 'to balance the conservative majority' The first Southern state legalizes marijuana — what it means nationally MORE (D-N.Y.) has urged his colleagues to reject Gorsuch. 

He argued Congress should get a new nominee, not lower the threshold, if Gorsuch can't get 60 votes.

Other Democrats argue there would be nothing to stop Republicans from using the “nuclear option” for the next Supreme Court nominee. 

“I think they always have the weapon at their disposal of the nuclear option to push through, however extreme a nominee they want,” said Sen. Sheldon WhitehouseSheldon WhitehouseLawmakers say fixing border crisis is Biden's job Democrats wrestle over tax hikes for infrastructure Democrats look to impose capital gains tax at death MORE (D-R.I.), who plans to vote against Gorsuch. 

The use of the nuclear option “could be anytime,” he said. “Unless we get some assurance that’s not going to happen, we have to assume it will happen.” 

Whitehouse said Senate Republicans have long been saying the Senate should be making important decisions with no less than 60 votes “and nothing’s more important than a Supreme Court appointment, particularly one that is a balance-tipper like the present one.”

Yet while Schumer is pushing the showdown over Gorsuch, he has expressed regret about the decision by Democrats in 2013 to change the rules for Cabinet nominees. He told CNN he wished the change, accomplished through the nuclear option under then-Senate Majority Leader Harry ReidHarry Mason ReidWhite House races clock to beat GOP attacks Harry Reid reacts to Boehner book excerpt: 'We didn't mince words' The Memo: Biden seeks a secret weapon — GOP voters MORE (D-Nev.), “hadn’t happened.”

The rule change proved auspicious for Trump. It’s doubtful that several of his Cabinet picks, including Education Secretary Betsy DeVos and Environmental Protection Agency Administrator Scott Pruitt, would have won confirmation under the old system, as neither came close to securing 60 votes. 

Still, groups on the left are pushing hard for Senate Democrats to hold the line on Gorsuch, especially after Senate Republicans last year refused to give a hearing to President Obama’s nominee for the seat, Merrick Garland.

Adam Green, co-founder of the Progressive Change Campaign Committee, called the premise of not filibustering Gorsuch to preserve the filibuster in the future absurd. 

“Going along with a right-wing justice so later on you have the right to block a right-wing justice is ridiculous,” he said. “That’s why we’re urging Democrats to filibuster.”

Green added that said it's not clear Senate Majority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellTrump: McConnell 'helpless' to stop Biden from packing court Senate GOP opens door to earmarks McConnell sidesteps Trump calling him 'dumb son of a b----' MORE (R-Ky.) actually has the votes to “go nuclear.” 

“It will be a challenge for McConnell to get the votes and we can’t let him win something as important as a Supreme Court seat on a bluff," he said. "That’s crazy."

Thirty-two Senate Democrats and Sen. Bernie SandersBernie SandersAmazon workers have spoken — are progressives listening? What's really behind Joe Biden's far-left swing? It's time to declare a national climate emergency MORE (I-Vt.), who caucuses with the Democrats, have pledged to vote against Gorsuch and support a filibuster, while only Sen. Joe ManchinJoe ManchinNixed Interior nominee appointed to different department role  Against mounting odds, Biden seeks GOP support for infrastructure plan Democrats face mounting hurdles to agenda MORE (D-W.Va.) and Sen. Heidi HeitkampMary (Heidi) Kathryn HeitkampBill Maher blasts removal of journalist at Teen Vogue Centrist Democrats pose major problem for progressives Harrison seen as front-runner to take over DNC at crucial moment MORE (D-N.D.), who are both up for reelection in 2018, have pledged to vote for him.

"I hold no illusions that I will agree with every decision Judge Gorsuch may issue in the future, but I have not found any reasons why this jurist should not be a Supreme Court Justice," Manchin said in a statement Thursday.

Twelve Senate Democrats and Sen. Angus KingAngus KingBipartisan lawmakers signal support for Biden cybersecurity picks Groups petition EPA to remove ethane and methane from list of compounds exempt from emissions limits Lack of cyber funds in Biden infrastructure plan raises eyebrows MORE (I-Maine) have not yet taken a position, and Republicans would need support from a least six to advance Gorsuch to an up-or-down vote.

Before announcing her support for Gorsuch, Heitkamp had told The Hill she’s worried about the long-term impact of Republicans changing Senate rules. 

“Everybody should worry about that,” she said.

Delaware Senator Chris CoonsChris Andrew CoonsCEOs say proposed Biden tax hike would hurt competitiveness Biden to meet Monday with bipartisan lawmakers about infrastructure Buttigieg: Biden will have 'open mind' toward changes to infrastructure bill MORE, another Democrat on the fence, said he too is concerned. 

“I think we should all be concerned about the direction the Senate is heading.” 

While Republicans are expressing confidence that Gorsuch will be confirmed, some are hoping that the nuclear option is avoided, given the likelihood that Democrats will someday again have the White House.  

Sen. Susan CollinsSusan Margaret CollinsAgainst mounting odds, Biden seeks GOP support for infrastructure plan Trump's early endorsements reveal GOP rift The Hill's Morning Report - Biden assails 'epidemic' of gun violence amid SC, Texas shootings MORE (R-Maine) said this week she supports Gorsuch but doesn’t want to change the Senate rules to confirm him.

“I really hope that it doesn’t come to that,” she said.

Rachel Bovard, director of policy services at the conservative Heritage Foundation, said the nuclear option opens the door to ending the filibuster of legislation and could come back to haunt Republicans in the future.

“At some point the majorities will be flipped, and we’ll be on the receiving end of having a Supreme Court justice slammed down our throats,” she said.