Showdown: As Senate Democrats Approach 41 Votes to Filibuster Gorsuch, GOP Faces Crucial Test

Posted: Mar 28, 2017 2:25 PM

Yesterday, I examined the state of play on the Gorsuch nomination, bearing in mind a ridiculous "deal" that has apparently been jettisoned.  I concluded that Senate Democrats would end up falling just shy of the 41 votes needed to sustain a filibuster against the nomination of Neil Gorsuch, and perhaps strategically so. But sources within the party are now predicting that President Trump's nominee might max out in the high-50's, meaning that a filibuster could be in the offing after all. In order for Chuck Schumer to pull off this base-pleasing extremist gambit, he can only lose up to seven of the upper chamber's 48 Democrats in a cloture vote. If these whispers and loose whip counts pan out, it would appear as though it's high time for Senate Republican leadership to begin seriously grappling with the possibility that they'll be forced to take decisive action to break an unprecedented blockade:

Supreme Court nominee Neil Gorsuch’s path to 60 votes is rapidly closing — setting the stage for a nuclear showdown in the Senate as soon as next week. Senior Democratic sources are now increasingly confident that Gorsuch can’t clear a filibuster, saying his ceiling is likely mid- to upper-50s on the key procedural vote. That would mark the first successful filibuster of a Supreme Court nominee since Abe Fortas for chief justice in the 1960s...In the latest ominous sign for the federal judge from Colorado, Sen. Bill Nelson (D-Fla.) said Monday he’ll oppose Gorsuch on the cloture vote, which is expected late next week. More than a decade ago, Nelson helped break a filibuster of now-Justice Samuel Alito. If Democrats successfully filibuster Gorsuch, Majority Leader Mitch McConnell has heavily telegraphed that he will invoke the so-called nuclear option to unilaterally change Senate rules with a simple majority vote. And Republicans are confident they’ll have the votes to do it, even as wary as many senators are about forever altering the deliberative nature of the chamber. “We’re not going to be treated by a double standard,” Senate Majority Whip John Cornyn (R-Texas) said in an interview on Monday. “We’ll give our Democratic colleagues a chance to see if they provide the 60 votes; if they do, it’s a moot point. And if they don’t, as I said before, we will confirm him one way or the other.”

That Politico report mentions several Democrats who remain publicly undecided, including a number of Senators up for re-election next year who represent states carried by Donald Trump last fall. But other members in that position, such as Pennsylvania's Bob Casey and Michigan's Debbie Stabenow, are lining up to lend their support to Schumer's filibuster. Patrick Leahy of Vermont said yesterday that he's "not inclined" to filibuster Gorsuch, then rapidly walked back that sentiment on Twitter, amid an angry left-wing backlash.  Illinois' Dick Durbin has also flip-flopped on this question, announcing today that he'll go along with what would be the first filibuster of its kind in US history, as explained by a senior aide to Mitch McConnell:

It increasingly looks like Democrats' hardcore liberal base is flexing its muscles and calling the shots:

Democrats are under heavy pressure to oppose Gorsuch from liberal activists emboldened by Friday’s collapse of the GOP effort to repeal Obamacare. The party’s unified opposition during the health care fight has helped left-leaning activists sell their message on Gorsuch: Sticking together on a filibuster can add more political momentum heading into next year’s midterms. Liberal groups that have fought both Gorsuch and the GOP’s Obamacare repeal bid are now homing in on the judge, cheering the growing number of Democrats declaring their opposition as they plan for a nationwide Supreme Court protest on Saturday...the Democratic base is feeling good about a minority leader whose early moves had some on the left worried he might be too willing to accommodate the White House. “Schumer has stepped up,” one prominent progressive said. “Seeing Trump give up the moment going gets tough stiffened Democrats’ spines to fight hard for their principles on Gorsuch,” Washington director Ben Wikler said. “It’s clear that if Democrats are united around popular principles, and fight back hard, they can win.”

That last quote in bold should be major locker room bulletin board material for Trump, whom leftists evidently believe they can push around in the wake of the GOP's healthcare failure.  The hard left is emboldened to provoke a confrontation that they believe they can win.  A former senior aide to twice-defeated Sen. Russ Feingold of Wisconsin (and a Harry Reid alum) tweeted yesterday that he believes Republicans lack the votes to invoke the Reid Rule and go nuclear over Gorsuch, while a leader of the radical abortion lobby is loudly and publicly demanding that Democrats obstruct the president's selection:

The Left is manning its battle stations, and so must conservatives. Let's make things perfectly clear: Never before has a Senate minority sustained a filibuster against a majority-supported Supreme Court nominee for partisan reasons. The only previous instance of a Supreme Court nomination being "thwarted by less than a majority of the Senate" occurred in the late 1960's, and that episode centered around a bona fide ethics scandal. Today's Democrats have no substantive objections to Neil Gorsuch. They're evidently preparing to filibuster him simply because they don't agree with his judicial philosophy, and because they're still bitter over Republicans' handling of Merrick Garland last year. But the Garland nomination was sidelined using Democrats' own playbook, under the Biden and Schumer standard -- plus, Senate Republicans were not in an especially forgiving mood with memories of Harry Reid's court-packing nuclear option still fresh in their minds. Democrats pioneered the use of judicial filibusters to obstruct majority-supported nominees during the Bush years, then employed strong-arm tactics to change Senate rules when Republicans simply followed suit under President Obama. At every turn, dating back to the infamous Bork showdown, Democrats have been the aggressors in these fights, escalating partisan tactics as their transitory political interests have required. When the GOP answers back by merely holding them to their own newly-established rules, Democrats cry foul and cite that turnabout as justification for their next escalation.  Don't forget that they were openly promising to expand the 'nuclear' Reid Rule if Hillary Clinton had won. 

If Senate Democrats once again drag the confirmation wars into uncharted territory, Republicans have a responsibility to burn them. Badly.  Being powerless to impede President Trump's cabinet selections was a source of frustration for Schumer's crew, some of whom evinced regret over triggering the Reid Rule a few years prior. But those regrets seem to be receding, as they prepare to take a new plunge, betting that the GOP won't have the fortitude to follow through with hardball tactics of their own. Having spoken to a number of well-placed Republican sources on Capitol Hill, it sounds like GOP members are seething over Democrats' conduct on these issues, dating back years. They're especially galled at the treatment of Neil Gorsuch, who has been virtually universally hailed as brilliant and eminently qualified. A number of would-be Republican compromisers have signaled that they're prepared to do whatever it takes to confirm Gorsuch, and I'm told that even uber-moderate Susan Collins (who formally announced her support for Gorsuch this morning) is leaning toward standing with her party on this point.  "Our members are fired up," one source tells me.  Allowing Democrats to derail his nomination under a Republican president, in a Senate controlled by Republicans, would set a disastrous precedent. It cannot be allowed to happen. And does anyone have even a shred of doubt that if Democrats were ever on the opposite end of such a scenario, they'd link arms and go nuclear again? Their words and deeds have been unambiguous for quite some time.

Should Schumer and company follow through on this threat, Senate Republicans must bypass the filibuster to confirm the president's nominee.  Furthermore, if and when another vacancy arises (which could occur as soon as this summer), Trump should make a statement by promptly nominating a qualified and unapologetically conservative judge to assume that seat, too.  Democrats ought to be forced to watch two, or even three, justices get confirmed by a simple majority vote, having eviscerated their own ability to stop any of them. Trump should also expedite his picks to populate influential lower federal courts, as well.  Years of shameless power grabs cannot go unanswered.  Elections have consequences, and so do actions.  In the realm of judicial confirmations, Senate Democrats have long behaved like spoiled, entitled, ends-justify-the-means hypocrites.  The time has come for Republicans to treat them as such.