Judge Neil Gorsuch, President Donald Trump's Supreme Court nominee, may fall short of the votes needed for smooth passage in the Senate next week, potentially dashing Republican hopes for an easy victory after the stinging defeat of the American Health Care Act last week.
Gorsuch needs 60 votes to clear a procedural hurdle required of high-court confirmations in the Senate, but Republicans, who hold just 52 seats, may not have the votes in a chamber that is divided deeply along partisan lines.
Republicans do, however, have the votes to choose the "nuclear option" to change the rules and allow Gorsuch's confirmation — and others after it — to proceed on a simple majority vote. That would upend a long-standing Senate tradition that forces the governing party to seek bipartisan support.
"I think this is tragic,"said Sen. Christopher Coons, D-Del., a member of the Senate Judiciary Committee, who added in an interview on MSNBC's "Morning Joe" that he doubts that Gorsuch will be able to get the 60 votes needed to end a filibuster threatened by some Democrats. But he also said Republicans will most certainly choose to end the practice.
With relations between Democrats and Republicans already strained, the brewing fight over Gorsuch's confirmation and how it could change the way the Senate does business is likely to make the partisan rancor even more intense in the coming days. While Republicans need at least eight Democrats to join with them to block a filibuster, no Democratic senator has announced plans to back Gorsuch.
Gorsuch, 49, has been on the Denver-based U.S. Court of Appeals for the 10th Circuit for the past decade. Trump nominated him to fill the seat made vacant when Justice Antonin Scalia died in February 2016. Republicans say that Gorsuch will be confirmed despite Democratic opposition — a threat that suggests they are prepared to make the change allowing a simple majority vote.
A final vote on Gorsuch is still more than a week away. On Monday, the Judiciary Committee delayed a vote on Gorsuch for one week at the request of Democrats. Republican leaders are hoping to confirm him by April 7, when a two-week congressional recess is scheduled to begin, so that Gorsuch can join the court by late April for the final cases of its term that ends in June.
Democrats have called that timetable rushed, noting that since the 1980s it has taken 29 days on average between the start of a Supreme Court confirmation hearing and a final confirmation vote.
Coons's prediction came after consultations with senators in both parties about brokering a deal that would lead to Gorsuch's confirmation without upending current Senate traditions, according to multiple senators and aides familiar with his negotiations.
The hope was to find a bipartisan group of rank-and-file senators who could negotiate a deal that would again steer the Senate away from partisan brinkmanship on federal court vacancies. A group of 14 senators from both parties warded off a similar impasse in 2005 — but just three members of that "Gang of 14" remain in office. And Coons signaled Monday that he has found little appetite for a new agreement.
"We've got a lot of senators concerned about where we're headed," he told MSNBC. "There's Republicans still very mad at us over the 2013 change to the filibuster rule. We're mad at them for shutting down the government, they're mad at us for Gorsuch, and we're not headed in a good direction."
Democrats used the nuclear option in 2013 to change how the Senate confirms executive-branch nominees and lower-level federal judges, against the strong objections of Republicans.
Four years later, Democrats are finding there is little upside to cooperating with Trump and Republicans. Senate Minority Leader Charles Schumer, D-N.Y., last week announced plans to filibuster Gorsuch. Others including Thomas Carper, D-Del., Elizabeth Warren, D-Mass., Al Franken, D-Minn., and Tom Udall, D-N.M., followed suit. No Democrat has announced support for Gorsuch, and some moderates say they are still mulling a final decision.
Sen. Joe Manchin, D-W.Va., said he is planning to meet with Gorsuch again before deciding. Sen. Heidi Heitkamp, D-N.D., said in a statement that she is "in the process of reviewing" the nomination and will not make a final decision for several days. Sen. Joe Donnelly, D-Ind., had no comment about his plans when asked on Monday. Sen. Jon Tester, D-Mont., also said that he had not decided but added that he would not be splitting his votes by voting to end a filibuster but then voting against Gorsuch's confirmation. "My cloture vote and vote for him will be the same," he told reporters.
The White House and Senate Republicans are hoping that a multimillion-dollar ad campaign bankrolled by conservative legal groups can help put pressure on Manchin, Heitkamp, Donnelly and seven other Democrats facing re-election next year in states that Trump won in November. Two of those 10 Democrats — Sens. Robert Casey, Pa., and Bill Nelson, Fla. — have said in recent days that they will vote against Gorsuch.
If the pressure campaign doesn't work, GOP aides privately hope that senior Democrats can prevail upon colleagues to at least help break a filibuster to preserve Senate tradition. White House press secretary Sean Spicer cited comments by Sen. Patrick Leahy, D-Vt., who has served on the Judiciary Committee since 1979 and told the Vermont political website VTDigger over the weekend that while he is opposed to Gorsuch, "I am not inclined to filibuster."
Many Democrats know that supporting Gorsuch would cost them support back home.
At a town hall meeting Sunday afternoon in Rhode Island, Sen. Sheldon Whitehouse, D-R.I., was welcomed with a standing ovation for his role in the Gorsuch hearings as a member of the judiciary panel.
The senator said Gorsuch had failed to win over any Democrats with evasive answers on issues such as campaign finance and gerrymandering. One constituent, holding a sign showing her support for Merrick Garland — President Barack Obama's Supreme Court nominee, who was blocked by Republicans last year — asked whether Republicans would really blow up the filibuster to get Gorsuch through.
"They can, but by all rights, 60 votes ought to be the standard," Whitehouse said. "When he doesn't get 60 votes, that's going to give Mitch McConnell a tough choice. He'll have to either change the candidate or change the rules. And it's not going to be easy for him to change the rules, because a lot of people in his caucus will push back. We have to have the vote, show this guy can't get 60, and see where it goes from there. In the crucible of the Senate, sometimes good things can emerge."
Over a few rounds of questions, Whitehouse raised the possibility that Gorsuch would be blocked and Republicans would start over with a more moderate nominee. In a short interview after the speech, Whitehouse said he was confident that more than 40 Democrats would hang together. "If four, or five, or two, or no Democrats want to support him, the result is the same — not 60," Whitehouse said. "This is a problem [Republicans] should have seen when they picked a nominee off of a list from special-interest groups."
Asked about the possibility that the filibuster would be "nuked," ripping it away from Democrats in future fights, Whitehouse chuckled. "To my mind, there's no reason to lose a fight in order to save yourself for a later fight," he said. "You just face the same fight later, plus you've already lost."
Sen. Tim Kaine, D-Va., said Monday: "The R's are going to do what the R's are going to do. I'm going to make my decision based on the merits. What we learned in the Garland case is that they're going to do whatever they want to do. The way I look at it is that the Supreme Court is the only office that requires a 60-vote threshold. That mandates that there be some bipartisanship."