WASHINGTON – The battle to confirm Judge Neil Gorsuch to the U.S. Supreme Court is set to come to a head this week and will likely reshape how the Senate confirms future justices, prompting senators and other observers to warn that subsequent battles over court nominees could be even more heated.
Gorsuch’s nomination to replace Antonin Scalia, with whom he shares an “originalist” philosophy of constitutional interpretation, is unlikely to tip the ideological balance of the Supreme Court. And Gorsuch’s three days of confirmation hearings last month never captured the national attention afforded to previous nominees.
But with the Senate Judiciary Committee scheduled to refer him to the full Senate on Monday, lawmakers are about to embark on the final – and perhaps most bitter – round of debate.
Three days of formal debate begin Tuesday with Republicans planning to confirm Gorsuch by Friday. That timeline would give the 49-year-old federal appeals court judge a chance to join the high court in late April and to participate in the final cases of this year’s term, which ends in June.
The Republican-controlled Senate is likely to confirm him, but only if it changes the chamber’s rules. Democrats are vowing to filibuster Gorsuch, a tactical roadblock that can only be overcome with the votes of 60 senators. Republicans hold 52 seats, and only three moderate Democrats so far say they plan to vote for Gorsuch.
On Sunday, Senate Minority Leader Charles E. Schumer, D-N.Y., said that it is “highly, highly unlikely” that Republicans will get the 60 votes needed to end a Democratic filibuster. Appearing on NBC’s “Meet the Press,” Schumer added that it “is up to Mitch McConnell and the Republican majority” to set the rules and tenor for the confirmation vote.
But McConnell, R-Ky., the Senate majority leader, disagreed, telling “Fox News Sunday” that Gorsuch will “ultimately be confirmed. Exactly how that happens … will be up to our Democratic colleagues.”
If Democrats successfully filibuster Gorsuch, McConnell and his caucus are likely to agree to change the chamber’s rules and end filibusters on Supreme Court picks. That would extend a rule change made by Democrats in 2013 that punished Republicans for years of attempts to block President Barack Obama’s nominees by ending filibusters for all executive branch appointments and lower-court picks.
Last year, Republicans refused to hold hearings or votes for Judge Merrick Garland, Obama’s choice to replace Scalia, arguing that the next president should get to pick the replacement. The move infuriated Democrats – and has been a major factor in generating such unified opposition to Gorsuch.
Martin B. Gold, a former floor adviser and counsel to Senate majority leaders Howard Baker, R-Tenn., and Bill Frist, R-Tenn., who has written a book on Senate floor procedure, warned that this week’s expected change in Senate rules is likely to put even more importance on the partisan control of the Senate.
“Between the Democrats taking offense at what the Republicans did on Garland and Republicans taking offense to what Democrats are doing to Gorsuch, you wonder who’s going to put the weapons down, or if they’ll always stay drawn,” Gold said. “And if the partisan makeup flips, you wonder if a president will ever get anyone confirmed.”
In interviews before Gorsuch’s confirmation hearings last month, several Republican senators agreed that Gorsuch was a safe conservative choice who would maintain the balance of the court and make future fights to fill vacancies even more critical.
“I have no doubt that from the Democrats’ perspective, the next vacancy will be Armageddon. They will fire every attack they can marshal at whoever the nominee is,” said Sen. Ted Cruz, R-Texas.
Sen. Jeff Flake, R-Ariz., agreed, saying that the next confirmation fight will be “a blood bath.”
Cruz and Flake’s predictions assume that the next Supreme Court vacancy will be caused by the departure of aging liberal justices, like Ruth Bader Ginsburg or Steven Breyer or by Justice Anthony M. Kennedy, the court’s most frequent swing vote.
The Gorsuch battle has not generated as much interest or concern among liberal organizations as among conservative groups. Conservative groups have spent nearly $10 million on a television ad campaign designed to pressure moderate Democrats.
Adam Jentleson, senior strategic adviser to the liberal Center for American Progress, said that progressives may not have felt as compelled to fight the Gorsuch nomination this year. But next time, he said, “We should prepare by being ready to wage the battle of ideas as aggressively as possible.”
The partisan dynamic could be “flipped in the future – and that’s the key thing,” he said. “There’s probably not much more that would be more motivating (to Democrats) than the terrifying prospect of Trump appointing an extreme conservative to the court to tip the balance for a lifetime. So, I think that with conservatives there’s a false sense of security that that’s something that plays to their advantage. I don’t think that will end up being true.”
Carrie Severino, chief counsel of the pro-Gorsuch Judicial Crisis Network, which is bankrolling the multimillion dollar ad campaign, said Schumer and Democrats are promoting a “historic level of gridlock.” She said her conservative organization has been opposed to judicial filibusters in both Republican and Democratic administrations and that only Democrats have ever used threats of a filibuster against Republican nominees.
JCN’s ad campaign appeared to help convince two moderate Democratic senators, Heidi Heitkamp, D-N.D., and Joe Manchin III, D-W. Va., last week to say that they will support Gorsuch.
On Sunday, Sen. Joe Donnelly, D-Ind., became the third Democrat to announce support for Gorsuch. He has been among 10 Democrats facing re-election next year in states that Trump carried in the November election who have been targeted by a multimillion dollar ad campaign backing Gorsuch.
The decisions by Heitkamp and Manchin earned swift rebukes from liberal organizations. NARAL Pro-Choice America, an abortion rights group that helps mobilize Democratic voters, warned that they would not endorse any Democrat who supports Gorsuch. On Sunday, the Progressive Chance Campaign Committee, a liberal political group that campaigns for Democratic candidates, ran full-page ads in North Dakota and West Virginia newspapers criticizing the senators’ choice.
That pressure may have been a factor for Sen. Claire McCaskill, D-Mo., who has also been targeted by JCN but said on Friday she will vote against Gorsuch. In an essay to constituents, she said it had been “a really difficult decision for me.”
Another potential “yes” vote, Sen. Angus King, I-Maine, said on Sunday that he won’t announced his decision until Tuesday or Wednesday, but suggested that he’s leaning against Gorsuch.
Filibustering a Supreme Court nominee “doesn’t strike me as out of line with Senate tradition,” King told CBS’ “Face the Nation,” noting that during his 4 1/2 years in office he’s had to cast votes to end filibusters 400 times “on all matter of big and small things.”