Will Senate Democrats Use the Only Power They Have—the Filibuster—to Block Trump's Supreme Court Nominee?

The process moves ahead Monday with Judiciary Committee hearings for Neil Gorsuch.

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“We are not going to make it easy for them to pick a Supreme Court justice,” Senate Democratic Leader Chuck Schumer declared days after President Trump nominated Neil Gorsuch, a conservative federal appellate judge, to the high court in January.

Will Senate Democrats impede the process? Or will they use the only power they have left, a filibuster, to block Gorsuch?

The country will soon see.

Schumer was among 13 Democratic senators who pledged they would filibuster Gorsuch’s nomination on the Senate floor. Unlike upcoming Judiciary Committee hearings, the Senate’s rules require Gorsuch to get at least 60 votes to be placed on the court. Democrats hold 48 Senate seats, meaning they’re positioned to block Gorsuch unless Republicans revoke the filibuster rule.

“There will be 60 votes for confirmation. Any one member can require it,” Schumer said. “Many Democrats already have, and it is the right thing to do. On a subject as important as a Supreme Court nomination, bipartisan support should be a prerequisite. It should be essential. That’s what 60 votes does.”

Senate Democrats, still burned by the GOP stealing Obama’s majority-changing court pick by refusing to act on Merrick Garland’s nomination, issued statements promising a Supreme Court fight. Because the court is often split four-four on the most divisive issues, this Supreme Court appointment is seen as defining its decision-making majority well into the foreseeable future.

Thirteen Democrats immediately pledged to filibuster, which means holding the floor to stop any further business until the nomination is withdrawn. Twelve didn’t commit, but seemed to support a filibuster. Twenty were uncommitted. Two wouldn’t comment. Only West Virginia’s Joe Manchin opposed a filibuster, but wouldn’t say what he’d do if fellow Democrats began one.

“Now more than ever, America needs Supreme Court justices with a proven record of standing up for the rights of all Americans—civil rights, women’s rights, LGBT rights, and all other protections guaranteed by our laws,” said Sen. Elizabeth Warren, D-MA, who backs a filibuster. “We don’t need another justice who spends his time looking out for those with money and influence.”

“Obama’s nominations required 60 votes. So should Trump’s,” said Sen. Bernie Sanders, I-VT. “If 60 people vote to confirm Judge Gorsuch, he will become the next justice.”

But since these statements in early February, the majority of Senate Democrats haven't revived the filibuster threat. The exceptions are the dozen senators like Schumer, Warren and Blumenthal who were quick to go on record supporting a filibuster.

Whether that is smart politics, taking a wait-and-see approach hinging on how Gorsuch fares in Judiciary Committee hearings, or keeping mum after meeting with him (a courtesy many Senate Republicans did not extend to Garland) is hard to say. AlterNet’s inquiries to the body’s political arm, the Democratic Senatorial Campaign Committee, were not returned on Friday.

However, the DSCC Chair, Maryland’s Chris Van Hollen, this week said, “We’ve been really clear that you need to meet the 60-vote standard…. As of right now, I think they’re a long way from getting to that number.”   

Meanwhile, Senate Democrats are hearing from a growing grassroots chorus to stand firm and oppose Gorsuch—no matter what Republicans do, or what pollsters will likely say is a public frustration with obstructionist tactics. That was the takeaway from a series of national polls in early February, where apart from support or opposition falling along predictable partisan lines, a majority said that just because Republicans behaved like thugs with Garland, Democrats shouldn’t follow suit with Gorsuch.     

“Most Americans disapprove of Senate Republicans’ decision to block an up-or-down vote for Garland after his nomination by then President Obama in 2016, with 56 percent of voters saying Republican senators were wrong to prevent the vote in the Quinnipiac poll taken earlier this month,” the Washington Post’s roundup of Gorsuch polls said.

“Approval for Gorsuch breaks down on clear partisan lines. Republicans are united in their support, with the CNN poll finding over 8 in 10 saying the Senate should confirm him (84 percent). About 6 in 10 Democrats are opposed, while independents favor nomination by a 47 to 35 percent margin,” the Post said, although it added that the Democratic base wasn’t opposed to playing hardball—a Senate filibuster.

“As with Republican-led opposition to Garland, it’s not clear Democrats will face significant blowback for resisting Gorsuch’s nomination. The CBS poll found 51 percent saying Democrats would be justified in using Senate procedures to prevent an up-or-down vote on Gorsuch,” the Post said.

While Schumer and Warren held or joined anti-Gorsuch events this week, the party’s activist base was also revving up its presence and pressure on Democrats to filibuster. Fifty-five reproductive health, human rights and justice organizations sent a letter to senators this week urging them to reject Gorsuch because of his anti-choice beliefs.

“Gorsuch has demonstrated he will go to extraordinary lengths to reach a result that would block women’s access to basic reproductive healthcare. Moreover, Trump established an outrageous litmus test for his Supreme Court nominees: they must be committed to overturning Roe v. Wade,” the letter said.

On Wednesday, Sen. Ed Markey, D-MA and Jeff Merkley, D-OR joined Warren for a rally on the Capitol’s steps to deliver nearly 1 million petition signatures demanding all senators reject Gorsuch. Markey and Merkley pledged to filibuster in early February.

Meanwhile, longtime economic and social justice groups were turning to the internet and social media networks urging their members to join the fight in blocking Gorsuch.

“We know that you care about money in politics, and Donald Trump’s Supreme Court nominee Judge Gorsuch has a longstanding record of defending money in politics as free speech,” People for the American Way said. “A Koch brothers-linked pro-money in politics organization, the Judicial Crisis Network, even launched a $10 million multi-state campaign to pressure senators to confirm Gorsuch.”

So far, only one Democratic senator, West Virginia’s Manchin, has opposed a filibuster. The party can only afford to see six more defections if its filibuster strategy is to hold. The Senate Republicans can revoke the filibuster rule, the so-called nuclear option, and ram Gorsuch through. They may very well end up doing that.

But for now, filibustering a U.S. Supreme Court nominee is the only power that the Democratic members of Congress have—in all other matters they are in the minority.  

Steven Rosenfeld covers national political issues for AlterNet. He is the author of several books on elections, most recently Democracy Betrayed: How Superdelegates, Redistricting, Party Insiders, and the Electoral College Rigged the 2016 Election (March 2018, Hot Books).


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