Schumer Confident Democrats Have Votes to Block Gorsuch

By Burgess Everett and Elana Schor, Politico

26 March 17

 

The Senate minority leader is prepared to force Mitch McConnell to try to invoke the 'nuclear option.'

huck Schumer is prepared to push the Senate into a nuclear confrontation over the Supreme Court.

In an extensive interview with POLITICO Thursday, the Senate minority leader made his most definitive statement to date that Democrats will deny Neil Gorsuch the 60 votes he needs to clear a Senate filibuster and ascend to the Supreme Court. Dismissing the notion of a deal to confirm Gorsuch floated by some members of his caucus this week, Schumer all but declared that Donald Trump's nominee will not receive the requisite eight Democratic votes — and that it will be up to Majority Leader Mitch McConnell as to whether to try to blow up the filibuster to get Gorsuch through.

“There’s been an almost seismic shift in the caucus [against Gorsuch]," Schumer said as the Senate Judiciary confirmation hearings wrapped up Thursday. "He did not win anybody over with his testimony.”

If Schumer stops Gorsuch during a filibuster vote in early April — and the New Yorker was brimming with confidence that he will — it will almost certainly force McConnell’s hand on the so-called nuclear option. Schumer is betting McConnell does not have the votes to do away with the 60-vote requirement for Supreme Court nominees.

“I don’t think it’s a foregone conclusion that Mitch McConnell changes the rules,” Schumer said. “There are people in his caucus who really don't want to change the rules, OK?”

Blocking Gorsuch would be a major win for the left. Liberal activists have been urging Schumer to do everything in his power to stop Trump's pick, even as Senate Democrats have struggled to mount a case against him.

But a battle that potentially brings about the end of the filibuster for Supreme Court nominees would further erode the Senate's character as the more deliberative chamber of the legislative branch. And it would have dramatic consequences for both political parties.

Supreme Court selections would no longer need bipartisan buy-in, possibly resulting in more ideologically extreme justices. And in general, the two parties in the Senate would have one less occasion to cooperate. The partisan food fight over Trump's Cabinet nominees — facilitated by Democrats' move to eliminate the filibuster for those votes in 2013 — offered a possible preview.

While longtime Republicans hope to avoid a rules change, they're ready to respond to Schumer by gutting the filibuster if that's what it takes. McConnell himself has guaranteed Gorsuch’s confirmation. He has explicitly declined to rule out changing the rules via a party-line vote, also known as the "nuclear option."

Schumer said the “onus” will be on McConnell if the filibuster is further diluted. The majority leader's office declined to comment for this story.

McConnell can lose only two members on a vote to alter Senate rules. Some of the Republicans long thought to be most resistant to such a move sound increasingly likely to back their leader in such a showdown.

Sen. Lindsey Graham (R-S.C.) has vowed to do “whatever it takes” to get Gorsuch confirmed. However, his friend, Sen. John McCain (R-Ariz.) said it was “too early” to talk about.

“We’ll see if we can get eight Democratic votes,” McCain said Thursday.

While many Democrats are still assessing Gorsuch after four days of hearings this week, sources within the caucus said Thursday that the high court nominee appears increasingly likely to fall short of 60 votes. They attribute that to pressure from liberals, who blasted Democrats after POLITICO reported this week that some Democrats are mulling a deal with Republicans to confirm Gorsuch and preserve the filibuster for a subsequent nomination.

“Every nominee is extremely important. This is such a powerful position,” Schumer said. “I will make the argument with all the members why I think he’s bad. Everyone can make up their own mind, but I’ll do what I can.”

It’s Schumer’s first major test of his vote-whipping skills after serving for years as consigliere to former Democratic Leader Harry Reid of Nevada for years. No Democrat so far has announced support for Gorsuch. To the contrary, the nominee lost two critical swing votes on Thursday: Sens. Bob Casey of Pennsylvania and Tom Carper of Delaware.

For Democrats, beating Gorsuch is as much about payback for the stalled nomination of Merrick Garland as it is about objections to his judicial record.

Republicans are incensed that Schumer is leading the Democratic caucus into a new phase of the nominations war.

Schumer is “a good legislator,” Senate Judiciary Chairman Chuck Grassley said, but “your good wisdom gets clouded” serving in leadership.

“So I don’t really know what’s up based on the performance of this guy for 22 hours,” Grassley said of Gorsuch. “It’s going to be hard for people to want to vote against him, and I wonder if this threat of a filibuster isn’t a smokescreen.”

Schumer has also pushed for a delay in the confirmation process, given the ongoing FBI investigation into possible collusion between the Trump campaign and Russia. The move was cheered by liberal groups.

But Schumer’s tactics aren’t shared by some Democrats who remain undecided on Gorsuch. Sen. Joe Manchin of West Virginia appears highly uncomfortable with blocking Gorsuch.

Virginia Sen. Tim Kaine, the party's vice presidential nominee last year, said he would “decide over the weekend” how he would vote on the judge. A potential change to Senate rules is the domain of leadership, he added, "so I don’t think that’s going to affect my view of his candidacy on the merits.”

Sen. Jon Tester (D-Mont.), a swing vote who faces reelection in a state Trump won, said that the FBI-related concern is “Chuck’s view,” not his.

“I’m going to take a look at the hearing and read some of his opinions, as many as I possibly can, and will make it based off of that, not off of FBI investigations,” Tester said in an interview, adding that he expects to “hash out a decision sometime next week.”

Beyond Manchin, Kaine and Tester, at least 10 other Democrats have yet to weigh in on a potential filibuster of Gorsuch. Sens. Michael Bennet of Colorado, Amy Klobuchar of Minnesota, Angus King (I-Maine), Claire McCaskill of Missouri, and Mark Warner of Virginia declined to answer questions about the nominee on Thursday.

Also considered potential gets for the Gorsuch nomination, at least on opposing a filibuster, are Democratic Sens. Chris Coons of Delaware, a member of the Judiciary Committee; Sen. Maggie Hassan of New Hampshire, who met with the nominee last month; and three others who face reelection battles next year: Sens. Joe Donnelly of Indiana, Bill Nelson of Florida and Heidi Heitkamp of North Dakota.

Schumer didn't entirely rule out that Gorsuch could prevail. The minority leader said it would be "difficult to get 60 votes after his testimony went as poorly as it did," a characterization of Gorsuch's performance that not everyone shared.

But Schumer is now being explicit that he wants his members to side with him in opposition. And he doesn’t think it will be difficult to get them to go along.

“It’s not hard these days,” Schumer said. “We’re doing very well. And [Gorsuch] helped us by being poor with his hearings.”