President Trump’s nomination of Judge Neil Gorsuch to succeed the late Justice Antonin Scalia on the Supreme Court is heading for a final showdown Friday, in what is emerging as likely the most high-stakes partisan battle yet during the first 100 days of the Trump administration.
On Monday, the Senate Judiciary Committee approved the selection by a party-line vote of 11-9, and sent the nomination to the full Senate floor for final action. The Democrats have decided to launch a filibuster in an effort to block the Gorsuch nomination from receiving an up-or-down vote. Democrat Minority Leader Chuck Schumer (D-NY) declared Sunday, “We call it the 60 vote standard,” to ensure that “you get a mainstream justice.” Of course, there is no such “standard.” Justices who received less than 60 votes in the past were still confirmed. And the fact that Judge Gorsuch voted 99 percent of the time with the other judges on his federal appeals court means nothing to the ideologues who oppose him. For the Left, “mainstream” means only a judge’s willingness to bend the Constitution to suit the progressives’ social justice agenda.
The Democrats appear to have lined up enough votes to make their filibuster stick, placing them on a collision clause with the Republican majority. If the Democrats do not budge, Senate Majority Leader Mitch McConnell (R-Ky) is on course to lead his party majority to adopt the so-called “nuclear option” and change the Senate rules, eliminating the 60 vote filibuster barrier for Supreme Court nominations. A simple majority can then proceed on an up-or-down vote to confirm Judge Gorsuch. In addition to the 52 Republicans voting in favor, 3 Democrats so far have also indicated their intention to vote for Judge Gorsuch – Senator Joe Donnelly of Indiana, Sen. Joe Manchin of West Virginia, and Senator Heidi Heitkamp of North Dakota. A fourth Democrat, Michael Bennet of Colorado, said he would not vote to support the filibuster.
The Democrats’ desperate gambit will not succeed. “What I’m telling you is that Judge Gorsuch is going to be confirmed,” said Senator McConnell on Sunday. “The way in which that occurs is in the hands of the Democratic minority.”
The Democrats conveniently ignore the fact that Republicans did not stand in the way of former President Barack Obama’s first two choices for Supreme Court seats – Sonia Sotomayor and Elena Kagan. Instead, like spoiled brats, the Democrats are still sore that the Republicans would not consider Obama’s choice of Judge Merrick Garland during Obama’s last year in office, with a presidential election looming. They wanted to preemptively change the ideological balance of the Supreme Court by giving the seat of conservative originalist Scalia to a liberal replacement, without giving the voters a chance to weigh in first. More than a year later, they are taking out their wrath on President Trump’s first Supreme Court nominee, justifying their obstructionism with the bogus claim that the seat Judge Gorsuch would be filling was “stolen” from them.
During the Judiciary Committee meeting on Monday considering the Gorsuch nomination, the Democrat ranking member of the committee, Senator Diane Feinstein of California, alluded to the Garland episode. “There was simply no reason that the nomination of Judge Garland could not proceed, other than to deny the then-president of the United States, President Barack Obama, the ability to fill the seat,” Senator Feinstein said.
Senator Patrick J. Leahy, Democrat of Vermont, accused Senator McConnell of promising “to use whatever tactic is necessary to get his way, to make sure that Donald Trump’s nominee is confirmed, even if that means forever damaging the United States Senate.” Putting on an air of self-righteousness as the self-proclaimed “dean” of the Senate, the senior Democratic senator from Vermont added: “I’ve devoted myself to the good the Senate can accomplish. But I cannot vote solely to protect an institution when the rights of hard-working Americans are at risk. Because I fear that the Senate I would be defending no longer exists.”
Senator Leahy and his fellow Democrats are largely responsible for normalizing intense partisanship in the judicial confirmation process. For decades they have upped the ante. Recall the Democrats’ successful challenge to the nomination of Robert Bork by Ronald Reagan, and their unsuccessful attempt to block Justice Clarence Thomas’s nomination with unseemly ad hominem attacks. They also filibustered against highly qualified nominees put forward by George W. Bush to fill vacancies on appellate and district courts. Then the Democrats, in the height of hypocrisy, vociferously objected when the Republican minority followed the Democrats’ filibuster precedent to block the confirmation of some of Barack Obama’s lower court judges. The Democrats did not seek a compromise, as they are asking the Republicans to do now. They simply changed the rules. Under the leadership of then Senate Majority Leader Harry Reid of Nevada, they eliminated the filibuster rule with respect to all federal judges below the Supreme Court level, as well as executive branch appointments, so that only a majority vote would henceforth be required for confirmation. Senator McConnell will simply be finishing what Harry Reid started if the Democrats do not back off of their partisan filibuster threat, now escalated to the Supreme Court level.
That is not to say that Senate confirmations of Supreme Court justices used to be totally harmonious. To put things in some perspective, rancor over Supreme Court nominations has gone back almost as far as the founding of the country.
President George Washington’s choice for Chief Justice, John Rutledge, was voted down by the Senate in 1795, in part because he had opposed the Jay Treaty with England. Ironically, Rutledge, who had represented South Carolina in the drafting of the Constitution, was a strong advocate for congressional involvement in the Supreme Court appointment process. President John Tyler was denied even a vote on three of his nominees. After the Civil War, Congress actually abolished a Supreme Court seat to deprive President Andrew Johnson the opportunity to fill it. A little over 100 years later, another President Johnson – Lyndon Johnson – encountered a bipartisan filibuster that blocked his selection of Abe Fortas to serve as Chief Justice. Fortas later departed from the Supreme Court altogether because of ethical issues.
Democrats are now sinking to a new low, however, in organizing a completely partisan filibuster to block the Gorsuch nomination. Rather than keep their powder dry until President Trump, if given the opportunity, nominates someone they could more easily try to paint as a “fringe” candidate who would actually change the ideological balance of the Supreme Court, the Democrats appear poised to use their own nuclear option of the filibuster against Judge Gorsuch. The anti-Gorsuch movement has become so desperate that its faithful have rolled out a last minute charge of plagiarism against Judge Gorsuch. They point to one law journal article in particular written by Abigail Lawlis Kuzma. Unfortunately for Judge Gorsuch’s accusers, however, Ms. Kuzma herself denied that there was any issue of concern: “I have reviewed both passages and do not see an issue here, even though the language is similar.”
Despite the Left’s concerted efforts to discredit Judge Gorsuch in every way imaginable, a majority of Americans overall (54 percent), according to a recent NBC News|SurveyMonkey poll, say that Senate Democrats should allow a vote on Judge Gorsuch rather than filibuster. Even about a third of Democrats polled believe that way. However, Senate Democrats have become captives of their progressive base, which they fear may mount primary challenges from the Left against any Democratic senator declining to fight the Gorsuch nomination to the bitter end.
Back in February, Michael Moore had tweeted: “Senate Dems, let’s be very clear: You will filibuster & block this SC nom or we will find a true progressive and primary u in next election.”
According to a tweet by Alex Roarty from Mcclatchy, the three Democratic senators daring to back Judge Gorsuch are already feeling the backlash: “Progressive groups demand the @dscc not give any money to Manchin/Donnelly/Heitkamp for backing Gorsuch.”
The Democrats’ hypocrisy is demonstrated by one of the principal arguments they have made in opposing Judge Gorsuch. His confirmation is being promoted by huge outside funding, they charge. “I am deeply concerned that dark money will continue to drown out the voices and votes of citizens…,” Senator Jon Tester of Montana said in his statement opposing the nomination. Six Democratic senators had even written Judge Gorsuch an open letter asking him to investigate the sources of such “dark money.”
However, the Democrats have shown no interest in who was behind the funding of outside groups opposing the Gorsuch nomination, such as the Constitutional Responsibility Project, which refuses to divulge the names of their donors. George Soros-backed leftist groups such as Moveon.org are also involved in anti-Gorsuch protests. None other than Senator Schumer participated as a “trainer” in a Moveon.org hosted Resist Trump strategy call last Sunday, during which the agenda item “The Supreme Court: No lifetime appointment while president is under investigation” was discussed.
The Democrats are running out of arguments and tactics to stop the confirmation of Judge Gorsuch as the next Supreme Court justice. One way or the other, by week’s end, Justice Scalia’s seat will almost certainly be filled by a fellow strict constructionist.