Democrats in a Dilemma Over Trump’s Court Nominee
Senate Democrats will get a lot of advice about how to handle President Donald Trump’s nominee to the Supreme Court — and it appears they need it.
BY KATE ACKLEY AND TODD RUGER
CQ ROLL CALL
There’s pressure from liberal advocacy groups and the party’s energized base for Democrats to pull out all the stops in an attempt to block Judge Neil Gorsuch’s Supreme Court confirmation. Not only do those interests have concerns about his approach to abortion rights and environmental law, but they thirst for revenge for Republicans’ obstruction of former President Barack Obama’s nominee for the same seat.
Some moderate legal and political commentators, meanwhile, have urged Democrats to wait for another potential Supreme Court nominee to launch an all-out confirmation war — a possibility during the Trump administration since two justices are in their 80s. Gorsuch would replace the late conservative Justice Antonin Scalia, so his elevation from a federal appeals court in Denver wouldn’t shift the ideological balance of the high court anyway.
To add to the mix: In the minority, Democrats are powerless to thwart the nomination without help from Republicans. At stake is a long-held Senate rule that has required consensus from both sides on Supreme Court picks. And the fate of vulnerable Democratic senators up for re-election in 2018 may hang in the balance.
If Democrats have a cohesive strategy, they’re hiding it. On the cusp of dueling multimillion-dollar pressure campaigns to sway the chamber’s votes on Gorsuch, the one hint of consensus among Democrats is rather benign: They are willing to let the confirmation process begin.
“We’ve got to pull the facts out, put them together, analyze them,” said California Sen. Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, who met with Gorsuch on Monday. “People say, ‘Well, rush to judgment, you’ve got to know what you think.’ And sure, I know what I think, but that’s not the position I’m in. The position I’m in is to see that we weigh it correctly, that we have the material, that we’re comfortable with the decision.”
Senate Minority Leader Charles E. Schumer, who had protesters outside his Brooklyn home last week, struck a similar tone last Thursday on the Senate floor: “We in the Senate have a constitutional duty to examine the record of Judge Gorsuch robustly, exhaustively and comprehensively.”
Those aren’t the passionate fighting words sought by liberal activists, whose mantra has become: Resist. Already in an uproar over the new administration’s policy on refugees and some of its Cabinet picks, they’ve flooded the nation’s streets and airports — and the phones of senators — urging opposition to anything Trump.
Some progressive leaders have threatened to support primary opponents in the 2018 elections if Democrats don’t fight hard enough. Sens. Jeff Merkley of Oregon, Kirsten Gillibrand of New York, and Elizabeth Warren and Edward J. Markey of Massachusetts — all in safe Democratic states — have already pledged to vote “no” on Gorsuch.
Liberal organizations fighting the nomination are working around the country to capture that outrage for their cause, as they scour the judge’s record and history for anything that could help derail the appointment. Environmental and civil rights groups, women’s and abortion-rights activists, campaign finance overhaul organizations, among others, have spoken out in opposition.
People for the American Way is bankrolling TV ads this week in a dozen states — including North Dakota, West Virginia and Indiana — where moderate Democrats are up for re-election in 2018.
“The same issues that have been fostering all the activism and energy and consternation about the direction the Trump administration is taking us are going to present themselves,” said Marge Baker, executive vice president of the group.
A coalition called the Constitutional Responsibility Project is providing rapid-response and public relations outreach in opposition to Gorsuch. Anita Dunn, who helped shape the messaging for Obama’s court picks, and a team from her firm SKDKnickerbocker will spearhead the effort.
But conservative groups are trying to capitalize on other political currents — the ones that swept Trump into the White House. The Judicial Crisis Network announced a $10 million advertising campaign focused on states Trump won that have a vulnerable Democratic senator. The first $2 million went to Missouri, Indiana, North Dakota and Montana, as well as Washington, D.C.
“Some Democrats may be tempted to obstruct his nomination, but we have already launched a robust campaign in key states, and we will ultimately force vulnerable senators to choose between obstructing and keeping their Senate seats,” said Carrie Severino, the group’s chief counsel.
There’s also a middle ground forming, one based around the fallout from last year’s divisive election. Neal Katyal, an acting solicitor general in the Obama administration who argues cases before the Supreme Court, wrote an op-ed column in The New York Times that reflected an undeniable part of the political calculus: Trump could have chosen a nominee that was much more odious to Democrats.
“I, for one, wish it were a Democrat choosing the next justice,” Katyal wrote. “But since that is not to be, one basic criterion should be paramount: Is the nominee someone who will stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws? I have no doubt that, if confirmed, Judge Gorsuch would help to restore confidence in the rule of law.”
Scalia died on Feb. 13, 2016. Republicans blocked Obama’s pick of federal appeals court Judge Merrick Garland for 293 days. But Democrats aren’t in the majority, and the idea of holding open a seat on the Supreme Court until 2020 seems untenable.
The short-handed Supreme Court has been hamstrung in the year since Scalia’s death, unable to decide controversial cases such as a review of the Obama administration’s immigration executive actions because justices split 4-4. The court has taken fewer cases — especially avoiding work on divisive ones — as it awaits a ninth justice.
Conservatives appear to be on the same page. Republicans on the Hill and their interest-group allies — even those critical of the president — were genuinely pleased with Gorsuch’s selection. In the first days after Trump announced his pick, “there’s an intensity battle that we’re winning,” said Ron Bonjean, a former Senate leadership aide and partner in the messaging firm Rokk Solutions who is helping shape Gorsuch’s image.
Gorsuch, a trim and courtly Coloradoan, has wasted no time meeting with senators on the Hill. The nominee has something of his own personal lobbying team.
In addition to top White House aides, former Sen. Kelly Ayotte, the New Hampshire Republican who lost her re-election contest last November, is guiding Gorsuch around the chamber in a role known as sherpa. Neither Bonjean nor Ayotte is paid for the work.
The first call Gorsuch made after the pick was to Garland. The move revealed the nominee’s savvy to the mores of Washington’s legal and political communities, but it hasn’t bought him any goodwill from liberal activists, such as Baker at People for the American Way.
Gorsuch reflects “a pro-corporate sort of frame” from Trump and his administration, Baker said, associating the judge with other controversial picks including billionaire Betsy DeVos, the newly confirmed Education secretary.
“I think this nomination can be stopped. Democrats should use every tool,” Baker said.
Whether Democrats can block Gorsuch’s confirmation remains in doubt.
Senate Majority Leader Mitch McConnell of Kentucky and Sen. Charles E. Grassley, the Iowa Republican who leads the Judiciary panel, made a successful gamble last year to refuse to even hold a hearing for Garland. They said they wanted to wait until voters had picked the next president, and because they were in the majority, they controlled the schedule.
Democrats insist that McConnell, whose party holds 52 seats in the chamber, will need at least 60 votes, the threshold to override a filibuster, to confirm Gorsuch.
McConnell may find those votes among a crop of 10 Democrats who are up for re-election in 2018 and whose states voted for Trump. Three of them are already considered among the most likely to buck their party: Sens. Heidi Heitkamp of North Dakota, Joe Manchin III of West Virginia and Joe Donnelly of Indiana.
But if McConnell doesn’t have the votes, he may turn to the nuclear option that he’s reluctant to invoke: scrapping the filibuster rule for Supreme Court nominees, further eroding the procedural hurdle that Democrats ended in 2013 for all other judicial and executive-branch nominees, including Cabinet officials.
Democrats purposefully left intact the filibuster for most legislation and Supreme Court picks. But their inability to filibuster Cabinet appointments has affected the confirmation process this year. Democrats have boycotted committee votes on nominations, causing Republicans to quickly change panel rules.
Without cooperation from Republicans on the floor, all the Democratic maneuvering would only delay a final vote on any nominee. The same is true for ending the filibuster rule for Gorsuch.
The ad campaign from People for the American Way seeks to gin up opposition among voters in Maine, the home of moderate GOP Sen. Susan Collins, who noted that Gorsuch, a Harvard Law School graduate and onetime Supreme Court clerk, had “extraordinary intellect” and impressive academic and legal credentials.
McCaskill, the Missouri Democrat who is up for re-election next year in a state Trump carried, said Gorsuch deserves a hearing.
“Two wrongs don’t make a right,” she said. Republicans “should’ve given Merrick Garland a hearing. I am not going to model my behavior after their terribly bad, historically precedent-setting behavior.”
As for liberal activists who are outraged that Democrats seem willing to even consider Trump nominees, from the Supreme Court on down, McCaskill said she understands the emotional nature of the debate.
“I think they should watch all of us and see how hard we’re working to do everything we can when the values of this administration are in a train-wreck status with our values,” she said. “I’m making every decision on every nominee individually. I think that’s my job.”
Some Democrats, such as Sen. Chris Coons of Delaware, signaled fear for the future of the Senate as an institution should Republicans continue what their own party started in rolling back the filibuster — and if Democrats sought revenge for Garland’s treatment.
“If all we do is continue to exact a pound of flesh from each other, we will eventually strip our republic bare to the bone,” Coons said. “It is, of course, only human to want some revenge for this unprecedented theft of a vacant Supreme Court seat. Our challenge is to not act in a petty way.”
Republicans may be tempted to take the nuclear option, as Trump has urged them to do, especially since their party has the electoral advantage in 2018 with fewer seats to defend. McConnell can easily frame such a move as a “logical extension” of what Democrats did in 2013, under then-Majority Leader Harry Reid of Nevada, said Molly Reynolds, a Brookings Institution fellow who studies congressional rules and procedure.
But such a decision may come back to haunt Republicans years down the road. Just ask Senate Democrats.
“There’s a certain danger in changing rules,” Feinstein said. “If you look back, if hindsight is helpful, maybe it wasn’t smart to change them in the first place.”