Updated 6:22 p.m. | Long-held Senate rules that require consensus for Supreme Court nominees appear doomed, after enough Democrats announced they would block Judge Neil Gorsuch’s confirmation and force Republicans to alter filibuster rules if they want to put President Donald Trump’s pick on the high court.
The Republican-controlled Senate Judiciary Committee voted 11-9 along party lines Monday, as expected, to favorably advance Gorsuch’s nomination to the Senate floor, but not before key Democrats said they would oppose the 49-year-old federal appeals court judge from Colorado.
Two of the chamber’s longest-serving Democrats — Dianne Feinstein of California and Patrick J. Leahy of Vermont — announced at the committee that they would oppose a floor vote. When Sen. Chris Coons of Delaware also announced his opposition, it gave Democrats the 41 votes necessary to sustain a filibuster of Gorsuch’s nomination and block a floor vote.
A vote on the procedural motion to limit debate on Gorsuch is expected Thursday, with a vote on confirmation coming Friday. In the meantime, senators from both parties are poised to adhere to another Senate tradition — blaming the other party — when it comes to how the judicial confirmation process devolved to this historic point.
Majority Leader Mitch McConnell of Kentucky has indicated that Republicans would respond by changing the rules so that it only takes 51 votes to overcome a filibuster on a high court nominee — allowing Republicans to proceed to a confirmation vote without any help from Democrats. Some senators expressed concern the move would change the Supreme Court confirmation process to be more political and result in more ideological justices in the future.
If Republicans stand firm as expected, the Supreme Court will have its first new justice since 2010 and regain its conservative tilt. The court has been operating with only eight justices since Justice Antonin Scalia died in February 2016.
No ‘rubber stamp’
For some Democrats, they decided that trying to stop Gorsuch would be worth upending the Senate itself.
Leahy said at the hearing that he has supported Republican-appointed Supreme Court nominees in the past, but he found Gorsuch “patronizing” and “excruciatingly evasive” at his confirmation hearing two weeks ago. The former Judiciary Committee chairman said Gorsuch did nothing to allay concerns that he would bring a partisan agenda to the court.
The Vermont Democrat also said it appeared as though the nominee thought the committee was nothing but a “partisan rubber stamp.” Changing the filibuster rules for Supreme Court justices will forever damage the Senate, said Leahy, currently the longest-serving senator, in office since 1975.
“I cannot vote solely to protect an institution when the rights of hardworking Americans are at risk,” Leahy said. “Because I fear that the Senate I would be defending no longer exists.”
Sen. Lindsey Graham, R-S.C., defended Gorsuch’s qualifications and agreed that changing the filibuster rules would hurt the Senate’s judicial confirmation process. When Democrats controlled the chamber in 2013, they changed the chamber’s rules so that only 51 votes are needed to break filibusters and confirm other judicial nominees except to the Supreme Court.
“If we have to, we will change the rule and it looks like we’re going to have to,” Graham said. “And I hate that. I really, really do.”
Coons and other Democrats, however, questioned whether Republicans’ refusal to hold a hearing or vote for months last year on President Barack Obama’s nominee for the vacancy, Judge Merrick Garland, was not the same as a partisan filibuster.
Feinstein, top Democrat on Judiciary, criticized Gorsuch’s recalcitrance at the confirmation hearing, as well as his rulings in cases about the rights of disabled students and workers.
She questioned the role of $17 million of “dark money” that went first to defeat Garland and then to support Gorsuch. Dark money is so known because contributions are given to nonprofit groups that do not have to disclose their sources of funding.
“We’re not just evaluating a résumé. If we were, every Supreme Court nominee would pass unanimously, 100-0,” Feinstein said Monday when announcing her opposition to Gorsuch. “We do this because, if confirmed, a nominee’s decisions will affect the lives of all Americans for generations.”
Feinstein’s office confirmed she would also vote to uphold a filibuster that would stop Gorsuch from getting a vote.
“Unfortunately, Judge Gorsuch’s answers were so diluted with ambiguity, one could not see where he stood even on big and long-settled cases,” Feinstein said.
Three Democrats up for re-election next year in states won by Trump have said they would support a vote to proceed to Gorsuch’s nomination and to confirm him: Sens. Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota and Joe Manchin III of West Virginia. All 52 Republicans appear to support the procedural motion and Gorsuch’s confirmation as well.
Sen. Michael Bennet, a Democrat from Gorsuch’s home state of Colorado, said Monday he would not support a filibuster.
Sen. Orrin G. Hatch, R-Utah, said Democrats are politicizing the court and “we have no alternative” but to change Senate rules to put “a really fine judge” on the Supreme Court. Gorsuch, who has degrees from Columbia, Harvard and Oxford, was confirmed to the U.S. Court of Appeals for the 10th Circuit by voice vote in 2006.
“It's pathetic, that they’re so stupid they picked someone of this quality and ability,” Hatch said about the Democrats during a news conference after the committee vote. “And it all comes down to the fact they’re still gnashing their teeth that they lost the presidency last year, and this is one of the reasons they lost.”