As confirmation hearings get underway for President Donald Trump’s first Supreme Court nominee, Senate Democrats are facing increasing pressure to fight a fight that they have little to no chance of winning.
Opening statements at the Senate Judiciary Committee hearing for Judge Neil Gorsuch Monday often turned to the unprecedented circumstances under which he came to be the likely replacement for late Justice Antonin Scalia.
Democrats often observed that Gorsuch was receiving the fair consideration that Republicans did not afford to Judge Merrick Garland, former President Barack Obama’s nominee for Scalia’s seat.
Sen. Al Franken, D-Minn., called the refusal to consider Garland "a historic dereliction of duty, a tactic as cynical as it was irresponsible." Sen. Patrick Leahy, D-Vt., described it as “an extraordinary blockade.”
Republicans occasionally acknowledged the controversy as well. Sen. Ted Cruz, R-Tex., claimed the fact that Trump was elected with the expectation that he would nominate Scalia’s replacement gives Gorsuch a sort of “super-legitimacy.”
Since Trump won the election in November and it became clear that Republicans had succeeded in preventing Obama from filling the seat, progressive groups have been urging Democrats to practice the same obstructionism for Trump’s nominee.
The differences between the Garland and Gorsuch fights are vast, though. Republicans controlled the Senate when Obama nominated Garland, but Democrats in the minority have few procedural options to stall the Gorsuch nomination.
Although Democrats disputed the Republican contention that a Supreme Court nominee should not be considered in an election year, stalling the process works far better in the final 11 months of a presidency than at the beginning.
There are only a few ways this confirmation battle can end, and almost all of them involve Gorsuch eventually being placed on the court.
If at least eight Democrats join Republicans in voting to end debate, Gorsuch can be confirmed. If more than 40 Democrats hold strong and maintain a filibuster, Republicans could implement what is often referred to as the “nuclear option,” changing Senate rules to allow cloture and confirmation of Supreme Court nominees with 51 votes instead of 60.
The Daily Signal cites another outcome that avoids upending Senate rules and tradition and still gets Gorsuch confirmed by a simple majority. Republicans could invoke the “two-speech rule,” allowing a vote after each filibustering member gives two floor speeches.
In order to defeat Gorsuch, Democrats would need to sustain a united front against him and convince at least three Republicans to join them in opposition, or at least vote against going nuclear. Given public statements by GOP leaders and rank-and-file members, neither scenario seems likely.
None of this has fazed activists angling for a fight.
“When Democrats dither and bend over backwards to appear ‘reasonable’ in the ways only Washington can define it, they allow Republicans to enact their extremist right-wing agenda,” said Charles Chamberlain, executive director of Democracy for America, in a statement. “Democrats need to do everything possible to stop Trump’s extreme pick for the court, up to and including filibustering him.”
Chamberlain pointed to massive protests since Inauguration Day, intense confrontations with lawmakers at town halls, and calls jamming the congressional switchboards as evidence that the American people “won’t accept procedural cop-outs and sorry excuses from their supposed allies in the U.S. Senate.”
More than 100 civil and human rights organizations signed a letter delivered to Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and Ranking Member Dianne Feinstein, D-Cal., Friday urging them to oppose Gorsuch but not explicitly endorsing a filibuster.
Citing concerns about his past rulings on workers’ rights, immigration, discrimination, voting rights, and many other issues, the groups called on the Senate to carefully review his record and the impact his appointment would have on the rights and freedoms of Americans.
Wade Henderson, president of the Leadership Conference on Civil and Human Rights, the coalition that authored the letter, said in a statement Monday that lawmakers must demand answers from Gorsuch on important questions and ensure that he will not just serve as a rubber stamp for Trump’s agenda.
“Though President Trump may disagree, one of the paramount responsibilities of our judiciary is to serve as an independent check on the executive branch,” Henderson said. “Given the unprecedented power grab by this administration, it is imperative that the next Supreme Court justice demonstrate an ability to serve as that check.”
Some Senate Democrats have signaled a willingness to oblige progressive demands.
“If he’s out of the mainstream, I will not only vote against him - I’ll use every tool at my disposal, including filibuster,” Sen. Richard Blumenthal, D-Conn., told MSNBC Monday.
Senate Minority Leader Chuck Schumer, D-N.Y., has maintained that Democrats will demand Gorsuch get 60 votes to be confirmed, and he has kept the door open to a filibuster.
Others have balked at the proposition, particularly those up for reelection in 2018. Sen. Joe Manchin, D-W.V., said last month that it would be wrong to filibuster Gorsuch.
"If Republicans did something and now Democrats are going to do something, two wrongs don't make a right," he told CNN.
Conservative groups are already spending millions on advertising in support of Gorsuch in the home states of vulnerable Democrats, including Manchin, with more promised in the weeks ahead. Recent polls have shown more voters support confirming Gorsuch than oppose him, but the vast majority of Democrats want their senators to vote against him.
Prior to Monday’s hearing, Sen. John Cornyn, R-Tex., said Democrats should allow Gorsuch the straight up-or-down vote they demanded and were denied for Garland last year.
“Filibusters of judges were unheard of really before the George W. Bush administration,” he told Sinclair. “But our Democratic colleagues got together and they cooked up this idea that instead of 51 votes you needed 60 votes just to get confirmed.”
He did not take support for the nuclear option off the table, but he indicated he would prefer if it was simply not needed.
“I’d like to see us return back to the pre-George W. Bush days and say let’s give this judge a fair hearing and an up-or-down vote, and then we don’t have to worry about nuclear options,” he said.
Even if defeat is certain, Democratic strategist Matt McDermott said it makes sense in the long run for the party to go down swinging.
“Not only does it make sense for Senate Democrats to oppose the Gorsuch nomination, their base demands it,” he said. “Senate Democrats should use any necessary, including the filibuster, to block Trump's nominee. This is about losing the battle to win a war.”
After the way Republicans handled the Garland nomination, McDermott argued they are in no position to complain about politicization of the court or senators prioritizing party over country. As the GOP jettisoned tradition to squash Garland, progressives want to see the same conviction from Democrats.
“Voters are demanding resistance from the Democratic Party -- they're looking for a party that will stand up and fight back,” he said. “Frankly, the Democratic base is in no mood to hear about the traditions and courtesies of the Senate.”
Erich Pica, president of Friends of the Earth, is among those in no mood to hear about the traditions and courtesies of the Senate.
“We think that this seat should have been Obama’s seat… [Senate Majority Leader Mitch] McConnell essentially just stole this seat,” Pica said.
With the ideological balance of the court at stake, this is an issue where Pica believes Democrats backing down would send a strong message to the base that they cannot fight for what matters.
“If I were a Democrat in the Senate, I certainly would be fighting like hell for what I believe in and Gorsuch doesn’t stand for any of that,” he said.
He strongly supports a filibuster, even if it leads Republicans to strip away that power.
“If we don’t use the filibuster now, then what’s the point?”
Pica hopes Democrats will use this week’s hearing to demonstrate that Gorsuch is out of the mainstream on many issues and is in some ways even more conservative than Trump. He acknowledged that political pressure may lead some red state Democrats to confirm Trump’s nominee, but he suggested that would be a miscalculation.
“I understand their fear for reelection is greater than their fear for what Gorsuch will do to the American people,” he said. “If that’s all they’re worried about, then maybe they shouldn’t be in office.”
Capitulating to Trump on this would make reelection harder, according to Pica, and it could drive progressives to run primary challenges against any senators who vote for Gorsuch.
“They can’t win with a Republican base and they sure can’t win with a Democratic base that’s absent because they don’t believe in the candidate,” he said.