Senate Democrats secured enough votes Monday to filibuster the nomination of Judge Neil Gorsuch to the U.S. Supreme Court, increasing the likelihood that Republicans will enact a rules change to ensure his confirmation and pushing the battle into its climactic final act.
Four more Senate Democrats confirmed they will support a filibuster of Gorsuch’s nomination, giving the minority party the requisite 41 votes to maintain their procedural roadblock under pressure from Republicans.
The announcements came as members of the Senate Judiciary Committee gathered to vote on the high court nomination. While the outcome of the panel’s vote is not in doubt — Republicans hold a majority of seats on the committee — the testy hearing foreshadowed what is likely to be a combative debate over Gorsuch on the Senate floor this week.
Sens. Dianne Feinstein (D-Calif.), Patrick J. Leahy (D-Vt.), Christopher A. Coons (D-Del.) and Mark R. Warner (D-Va.) indicated they would vote “no” to end debate on the Senate floor and would oppose Gorsuch in a final vote.
[Watch live: Senate Judiciary Committee votes on Gorsuch]
Judge Neil Gorsuch prepares to testify during the third day of his confirmation hearings before the Senate Judiciary Committee last month. (Ricky Carioti/The Washington Post)
Leahy, the Senate’s longest-serving member, criticized Gorsuch’s answers during his marathon confirmation hearing as “excruciatingly evasive.”
“I cannot recall a nominee refusing to answer such basic questions about the principles underlying our Constitution and about how he interprets those principles,” Leahy said. “These are fundamental questions that we should ask every nominee seeking a lifetime appointment to our highest court.”
Leahy said that a GOP move to end the Supreme Court filibuster would damage the Senate. But argued that he must vote his conscience, even if that pushed Republicans toward the rules change.
“I cannot vote solely to protect an institution when the rights of hard-working Americans are at risk,” he said, “because I fear that the Senate I would be defending no longer exists.”
Senate Republican Whip John Cornyn (Tex.) passed blame back to the Democrats, noting times when they had filibustered President George W. Bush’s judicial nominees.
“I disagree with those who somehow say this is the end of the Senate as we know it,” he said. “This is a restoration of the status quo ante before our Democratic colleagues directed this artificial 60-vote requirement.”
Sen. Lindsey O. Graham (R-S.C.) expressed concerns about “where we are headed.”
[How many votes Democrats need to block Neil Gorsuch’s Supreme Court nomination]
“We are headed to a world where you don’t need one person from the other side to pick a judge,” Graham said. “And what does that mean? That means the judges are going to be more ideological, not less. It means that every Senate seat is going to be a referendum on the Supreme Court … The damage done to the Senate is going to be real.”
The judiciary panel is expected to approve Gorsuch without issue on Monday. This would allow debate on the nomination to begin in the full Senate, probably on Tuesday morning.
Republicans have vowed to confirm Gorsuch by Friday, when a two-week recess is set to begin, meaning the process will consume the Senate’s floor schedule this week. That timeline would give the 49-year-old federal appellate judge a chance to join the high court in late April and to participate in the final cases of this year’s term, which will end in June.
Also on Monday, Sen. Michael F. Bennet (D-Colo.), became the fourth Senate Democrat to oppose the filibuster, though he did not clarify whether he supports or opposes Gorsuch as a Supreme Court justice.
“Changing the Senate rules now will only further politicize the Supreme Court and prevent the Senate from blocking more extreme judges in the future,” he said in a statement.
Bennet is the only Senate Democrat not up for reelection in 2018 to oppose the filibuster.
Gorsuch’s nomination to replace the late justice Antonin Scalia, whose “originalist” philosophy of constitutional interpretation he shares, would be 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 the final round of debate on his nomination could be bitter. And although the Republican-controlled Senate is likely to confirm him, that will happen only if the chamber’s rules are changed.
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Eliminating the filibuster for Supreme Court nominees would extend a rule change, known as the “nuclear option,” that Democrats made 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.
Gorsuch was nominated by President Trump on Jan. 31 and spent weeks privately meeting with senators and preparing for his confirmation hearing. He was questioned by the Judiciary Committee last month for almost 20 hours over three days, answering nearly 1,200 questions and later sending about 70 pages of answers to written follow-up questions, according to a team of White House officials assisting with his nomination.
As of Friday, Gorsuch had met with 78 senators — all but some of the most conservative and liberal senators whose votes are more likely to be for or against him. But three first-term Democratic senators, Catherine Cortez Masto (Nev.), Tammy Duckworth (Ill.) and Kamala D. Harris (Calif.), said that they had been unable to get a face-to-face meeting with the nominee or were never offered the opportunity.
[Schumer: ‘Virtually impossible’ to avoid a filibuster fight on Gorsuch next week]
The fact that the three senators are women, with one Hispanic, one Asian and one African American, was not lost on some progressive groups that highlighted the perceived snub over the weekend.
Gorsuch aides insisted privately that difficulties scheduling time with the senators was the only reason they never met.
At the Judiciary Committee, the final outcome has never been in doubt, given that no Republican ever expressed concerns with Gorsuch and no Democrat on the committee ever signaled any favor for him.
Instead, Democrats have complained that on issues ranging from abortion rights to whether the nominee agreed with Supreme Court rulings in key privacy and racial segregation cases, Gorsuch repeatedly demurred, citing a concern that speaking too specifically on such matters might affect his ability to render fair decisions in future cases.
Gorsuch’s refusal to get specific mirrors what previous court nominees have done dating back to Justice Ruth Bader Ginsburg. But critics noted that despite 10 years as a member of the U.S. Court of Appeals for the 10th Circuit, Gorsuch had never ruled on issues such as abortion rights or some environmental matters.
[The two big, misleading statements senators can’t stop making in the Neil Gorsuch battle]
In interviews before Gorsuch’s confirmation hearings last month, several Republican senators agreed that he 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-Tex.).
Sen. Jeff Flake (R-Ariz.) agreed, saying that the next confirmation fight will be “a bloodbath.”
The predictions by Cruz and Flake assume that the next Supreme Court vacancy will be caused by the departure of older liberal justices, such as Ruth Bader Ginsburg, Stephen G. Breyer or 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, which have spent nearly $10 million on a television ad campaign designed to pressure moderate Democrats.
A multimillion-dollar ad campaign from the pro-Gorsuch Judicial Crisis Network appeared to help persuade two moderate Democratic senators, Heidi Heitkamp (N.D.) and Joe Manchin III (W.Va.), last week to say they will support Gorsuch. On Sunday, Sen. Joe Donnelly (Ind.), also targeted by JCN’s effort, became the third Democrat to announce support for Gorsuch. But another moderate, Sen. Jon Tester (D-Mont.), announced he would vote against Gorsuch and support the filibuster because, “I cannot support a nominee who refuses to answer important questions.” In all, 10 Democrats facing reelection next year in states that Trump carried in the November election have been targeted by the ad campaign backing Gorsuch.
The decisions by Heitkamp and Manchin earned swift rebukes from liberal organizations. That pressure may have been a factor for Sen. Claire McCaskill (D-Mo.), who has also been targeted by JCN but said on Friday that 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 Sunday that he will not announce his decision until Tuesday or Wednesday, but suggested that he is leaning against Gorsuch.
Amber Phillips contributed.
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