Washington, D.C.

Democrats plan to filibuster to thwart Gorsuch nomination

Schumer: 'My vote will be no'
Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court.
Judge Neil Gorsuch, President Trump’s nominee for the Supreme Court.

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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 Gorsuch, as supporters and critics traded dueling views on the fourth and final day of the Senate Judiciary Committee’s confirmation hearings.

While a parade of witnesses spoke in the committee room, Schumer went to the Senate floor and announced that he and other Democrats would refuse to permit an up-or-down vote on President Donald Trump’s nominee. The Senate’s “cloture” rule requires a supermajority of 60 votes to overcome such a filibuster.

“After careful deliberation I have concluded that I cannot support Judge Neil Gorsuch’s nomination to the Supreme Court,” 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.”

If at least 41 of the chamber’s 48 Democrats stick together in the filibuster, it would force the Senate majority leader, Mitch McConnell, R-Ky., to decide whether to try to change the rules of the chamber and approve Gorsuch with a simple majority. Trump has urged McConnell to take that step if necessary.

McConnell has said he wants the Senate to confirm 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.

During the four days of hearings, even Gorsuch’s critics did not dispute his credentials. On Thursday, representatives of the American Bar Association told the committee that it had unanimously found 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.

“We do not give the well-qualified rating lightly,” said Nancy Scott Degan, an official of the bar association.

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 Garland’s nomination, and liberal groups have been pressuring Democrats to filibuster the vote on Gorsuch.

Four years ago, when Democrats controlled the Senate and Republican senators were blockading 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.

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, Sen. Johnny Isakson, R-Ga., is recuperating from back surgery, so just two Republican senators could block a rules change.

Still, Gorsuch’s nomination is broadly popular among conservatives. The question facing Democrats is whether to have a filibuster fight over Gorsuch, highlighting what they consider the theft of a seat they believe 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 Trump nominates a staunch conservative who would shift the court’s balance.

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 Gorsuch was too conservative or praised him as a well-qualified and careful judge.

Two of Gorsuch’s former colleagues on the 10th U.S. Circuit Court of Appeals, 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 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 Gorsuch’s views on executive power and individual rights.

Jaffer pointed to documents showing, for example, that 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 Jaffer said he had been pleased to hear Gorsuch disavow on Wednesday a 2006 email sent while at the Justice Department. 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, 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.”

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