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Democrats Plan to Filibuster to Thwart Gorsuch Nomination Democrats Plan to Filibuster to Thwart Gorsuch Nomination
(about 2 hours later)
WASHINGTON — Democrats signaled on Thursday that they would filibuster the nomination of Judge Neil M. Gorsuch, President Trump’s Supreme Court pick, setting up a showdown with Republicans who may be forced to change longstanding rules to seat him on the nation’s highest court. WASHINGTON — The Senate Democratic leader, Chuck Schumer of New York, on Thursday vowed to lead an attempt to filibuster the Supreme Court nomination of Judge Neil M. Gorsuch, as supporters and critics traded dueling views on the fourth and final day of the Senate Judiciary Committee’s confirmation hearings.
“He will have to earn 60 votes for confirmation,” Senator Chuck Schumer of New York, the Democratic leader, said on the Senate floor Thursday morning, citing the threshold for breaking a filibuster on the selection. “My vote will be no.” While a parade of witnesses spoke in the committee room, Mr. Schumer went to the Senate floor and announced that he and other Democrats would refuse to permit an up-or-down vote on President Trump’s nominee. The Senate’s “cloture” rule requires a supermajority of 60 votes to overcome such a filibuster.
The announcement came one day after Judge Gorsuch completed his second day of testimony before the Senate Judiciary Committee, emerging largely unscathed amid a series of bland deflections and folksy digressions. “After careful deliberation I have concluded that I cannot support Judge Neil Gorsuch’s nomination to the Supreme Court,” Mr. Schumer said. “His nomination will have a cloture vote. He will have to earn 60 votes for confirmation. My vote will be no, and I urge my colleagues to do the same.”
Many Democrats are facing dual pressures as they make their decisions: The party’s progressive base has pressed them to oppose Mr. Trump at every turn, and many are still seething over the treatment last year of Judge Merrick B. Garland, President Obama’s nominee, whom Republicans refused to consider in an election year. If at least 41 of the chamber’s 48 Democrats stick together in the filibuster, it would force the Senate majority leader, Mitch McConnell, Republican of Kentucky, to decide whether to try to change the rules of the chamber and approve Judge Gorsuch with a simple majority. Mr. Trump has urged Mr. McConnell to take that step if necessary.
But several lawmakers face re-election races next year in states that Mr. Trump won, compelling some to weigh supporting Judge Gorsuch. Still, based on interviews and internal discussions, Judge Gorsuch appears to be short — at least for now — of the eight Senate votes he must earn from the Democratic caucus to reach 60 votes. (Republicans hold a majority with 52 seats.) Mr. McConnell has said he wants the Senate to confirm Judge Gorsuch to fill the vacancy, which was created by the death of Justice Antonin Scalia a year ago, before departing for a scheduled recess on April 7.
Also on Thursday, Senator Bob Casey, Democrat of Pennsylvania, who is up for re-election next year, said he would vote against Judge Gorsuch. During the four days of hearings, even Judge Gorsuch’s critics did not dispute his credentials. On Thursday, representatives of the American Bar Association told the committee that it had unanimously found Judge Gorsuch to be “well qualified,” the group’s highest rating. That was particularly notable in light of studies that have shown the group has tended to favor the nominees of Democratic presidents.
“I have serious concerns about Judge Gorsuch’s rigid and restrictive judicial philosophy,” he said, suggesting that the nominee “employs the narrowest possible reading of federal law and exercises extreme skepticism, even hostility, toward executive branch agencies.” “We do not give the well qualified rating lightly,” said Nancy Scott Degan, an official of the bar association.
Both Mr. Schumer and Mr. Casey echoed longstanding Democratic attacks on Judge Gorsuch: that his decisions tend to favor the powerful. The group also had given its highest rating to Judge Merrick B. Garland, whom President Barack Obama nominated for the Supreme Court last year. Senate Republicans refused to consider Judge Garland’s nomination, and liberal groups have been pressuring Democrats to filibuster the vote on Judge Gorsuch.
“His career and judicial record suggest not a neutral legal mind but someone with a deep-seated conservative ideology,” Mr. Schumer said. Four years ago, when Democrats controlled the Senate and Republican senators were blockading Mr. Obama’s appeals court and executive branch nominees, Democrats changed the chamber’s rules to bar filibusters for such positions — but left the filibuster rule in place for Supreme Court nominations.
Republican leaders have signaled an openness to changing longstanding rules regarding the filibuster and confirming Judge Gorsuch on a simple majority vote. And Mr. Trump has urged them to pursue this so-called nuclear option if necessary. To eliminate the filibuster for Supreme Court nominees, Republicans would need to vote in virtual lock-step: The party effectively has only 51 votes right now because one member, Senator Johnny Isakson of Georgia, is recuperating from back surgery, so just two Republican senators could block a rules change.
On Thursday, Mr. Schumer asked his colleagues to avoid the temptation. Still, Judge Gorsuch’s nomination is broadly popular among conservatives. The question facing Democrats is whether to have a filibuster fight over Judge Gorsuch, highlighting what they consider the theft of a seat they believe Mr. Obama had a right to fill, or whether to save that attention-grabbing tactic for a hypothetical future vacancy if a more liberal justice dies or steps down and President Trump nominates a staunch conservative who would shift the court’s balance.
“If this nominee cannot earn 60 votes — a bar met by each of President Obama’s nominees and George Bush’s last two nominees — the answer isn’t to change the rules,” he said. “It’s to change the nominee.” Despite the escalating political friction, the atmosphere in the Judiciary Committee hearing room on Thursday was often more perfunctory than passionate, as panels of witnesses selected by Democrats and Republicans alternately expressed concerns that Judge Gorsuch was too conservative or praised him as a well-qualified and careful judge.
Two of Judge Gorsuch’s former colleagues on the United States Court of Appeals for the 10th Circuit, in Denver — Deanell Reece Tacha, appointed by President Ronald Reagan, and Robert Harlan Henry, appointed by President Bill Clinton — praised his intellect and temperament.
But others expressed concerns. One strain of criticism came from human rights and civil liberties activists, who expressed alarm over Judge Gorsuch’s experiences as a Justice Department official in the Bush administration in 2005 and 2006, when he helped to defend and advance the executive branch’s positions on matters like detainee treatment and surveillance.
Jameel Jaffer, who litigated national-security cases against the government as the former deputy legal director of the American Civil Liberties Union, urged the committee to scrutinize more closely Judge Gorsuch’s views on executive power and individual rights.
Mr. Jaffer pointed to documents showing, for example, that Judge Gorsuch had worked to get Congress to enact a law stripping courts of jurisdiction to hear lawsuits by Guantánamo Bay detainees, and in one email chain he criticized law firms that helped represent prisoners in seeking judicial review of their detention.
But Mr. Jaffer said he had been pleased to hear Judge Gorsuch disavow on Wednesday a 2006 email sent while at the Justice Department. Judge Gorsuch had circulated an article criticizing lawyers from top law firms who were representing people detained at Guantánamo Bay, Cuba. “It seems odd to me that more hasn’t been made about this,” the judge had commented in the email.
On Wednesday, Judge Gorsuch told the committee that the email had not been “my finest hour” and that he had been “blowing off steam with a friend, privately.”