Democrats Weigh Risks of Blocking Gorsuch Nomination
President Trump’s nomination of Judge Neil Gorsuch to serve on the Supreme Court would seem a ripe political opportunity for Democrats: a moment to rile up their base and a chance at political payback.
With Trump’s approval rating hovering in the mid-40s and protests sprouting nationwide in objection to his fledgling presidency, Democrats face intense pressure from their core voters to reject his nominees for key posts, the Supreme Court being perhaps the most prominent among them.
Meanwhile, Senate Democrats are still stinging from Merrick Garland’s treatment by Republicans, who refused to consider President Obama’s choice to fill the late Justice Antonin Scalia’s seat, instead contending that the next president should pick.
Now that Trump has made his selection, Democrats could dish it right back by filibustering Gorsuch. But they might not.
The potential political downside could be much greater for the Democratic Party with Gorsuch than it ultimately was for the GOP with Garland — leaving reason to doubt that Democrats would fully obstruct the nominee rather than seek a more favorable fight elsewhere.
“I think it’s likely he’ll be confirmed,” said one Democratic Senate campaign operative, “and there will be a larger fight on the next one.”
At the heart of Democrats’ dilemma is an unusually challenging Senate map ahead in 2018, which will feature 10 of their incumbents running for re-election in states where Trump won. Were Democrats to block Gorsuch for months to come, their obstruction could begin to impact those frontline races.
“If they continue to delay this for a year or two, I think there will be a consequence for states that Trump carried in a big way,” said Sen. Thom Tillis, a North Carolina Republican. “If you take a look at North Dakota, Montana, Missouri, Indiana and West Virginia, they’re all states that Mr. Trump carried by 17 points or more. I think the real people in those states are expecting action, and all those states have Democrat incumbent members who are up in 2018.”
Some in that imperiled group have already decided that the risk comes at too high a price.
Sen. Joe Manchin, who will face a tough re-election fight in West Virginia next year, on Wednesday welcomed Gorsuch into his office for a first meeting. News organizations were invited to photograph them as they sat next to each other.
Manchin has not committed to backing the nominee with impeccable conservative credentials, but he has suggested that he will cast a vote for cloture to end debate and prevent a filibuster.
“I’m not obstructing anything,” Manchin told RealClearPolitics prior to his meeting with Gorsuch. “I don’t believe in obstruction.”
Manchin acknowledged that other Democrats would take a different approach in light of Garland’s nomination flap. “I would like to think that we are bigger than that,” he added, “but they have the right to do what they have to do.”
Oregon Sen. Jeff Merkley is among those drawing a red line at letting Gorsuch’s nomination move forward, warning this week that confirming him would “set a dangerous new precedent in American governance.”
"This is a stolen seat being filled by an illegitimate and extreme nominee,” Merkley said, “and I will do everything in my power to stand up against this assault on the Court.”
It might stand to reason that Democrats would be on safe political ground, and perhaps high moral ground, to follow Merkley’s lead. After all, the GOP decision last year to block Garland’s nomination was thought to be a dicey political risk that could play into Democrats’ hands. But the gambit ultimately proved a blip, failing to energize Democratic voters or spark a backlash against Republican senators. Democrats rarely mentioned Garland on the campaign trail, and he was absent from television advertisements. And, without the advantage of public hearings, Garland never garnered much public attention himself.
If anything, the tactic might have ultimately motivated some GOP voters to support Trump: among those who said the Supreme Court weighed most heavily on their decision in the presidential election, 56 percent backed Trump, according to CNN exit polling.
There are some Democrats who likewise view blocking Gorsuch as a potential win-win: either by obstructing the nomination outright, or in forcing Senate Majority Leader Mitch McConnell to deploy the so-called “nuclear option” -- changing the rules to require only a simple majority vote to end debate rather than the 60 now required.
“If Democrats filibuster Judge Gorsuch, they will either derail a candidate more extreme than Scalia, or the nuclear option will expose Sen. McConnell as even more of a partisan hack and a hypocrite than anyone thought,” said Jesse Ferguson, a Democratic strategist who most recently worked as a spokesman for Hillary Clinton’s campaign.
But there is also a third option, and it is increasingly likely given the underlying political dynamics. Republicans need only eight Democrats to join them to stamp out any filibuster, and they are already approaching that tally. Those senators could still oppose Gorsuch’s nomination, but a standoff would be averted — and, with Republican control of the chamber, he would likely win the final simple-majority vote.
Even Democratic senators who are not running for re-election have suggested they would support such a vote to end debate, if not necessarily ultimate confirmation for the nominee.
“I am still angry about Merrick Garland. But I believe that this nominee ought to have a hearing and a vote,” said Sen. Richard Blumenthal of Connecticut. “We should not repeat the Republican wrong. Two wrongs don’t make a right.”
Still, Blumenthal is urging McConnell to stand by the 60-vote threshold to stop any filibuster attempts, even if it means the nomination might be stalled.
“We have an obligation to review every nominee on the merits,” Blumenthal said, “and let the political chips fall where they may.”
The political argument can be persuasive, however. Although blocking Garland did not prove harmful to Republicans, there might be more risk to Democrats of damaging their odds in key races.
“I don’t think it’s a singular issue at all,” said Brian Walsh, a Republican operative with experience in Senate races, “but if they were to be partisan about it, it could be a building block of a larger narrative that they’re not representing their states’ values.”
A protracted fight over the nomination, the Democratic operative predicted, could also “have the effect of giving Trump some sympathy — if Trump stops doing all the other things he’s doing.”
Indeed, a drawn-out Supreme Court battle could be doubly risky for Democrats if it were to pull attention away from some of Trump’s missteps and instead put vulnerable senators in the spotlight.
“It is way too early to say what the 2018 election will be about,” conceded one Senate Republican campaign strategist. “However, this confirmation process is something Republican candidates will be able to point to when making a Democrat-obstruction argument.”
These days, though, Democrats’ political challenges have multiple dimensions — and in addition to winning over swing voters, the party must also find a way to re-energize its base, whose turnout was depressed in key states in 2016. So far, Trump has done the heavy lifting for them. But the party will need to capitalize on his missteps, and for now, Democratic activists are calling on lawmakers to block Trump at every turn.
“It is a challenge to remain balanced between those who are enraged by Trump’s recent actions and those who are hungry for us to find a way to work together,” acknowledged Sen. Chris Coons, a Delaware Democrat who supports a Senate vote on Gorsuch.
Whether voters ultimately will care about this Supreme Court fight is perhaps the fundamental question, and it is an open one. “I can’t think of a Senate race where we were attacking an opponent or they were attacking us on a Supreme Court justice vote,” said the Democratic operative.
But Republicans predict public pressure will help swing enough Democrats to their side. Senate Judiciary Committee Chairman Chuck Grassley, an Iowa Republican, said he is “not concerned” that opponents will block Gorsuch.
“And let me tell you why,” Grassley said. “I think their record of obstruction is going to wear thin with the people.”
James Arkin contributed to this report.