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Endgame unclear as Democrats rally for likely-doomed filibuster of Gorsuch

Supreme Court Justice nominee Neil Gorsuch laughs on Capitol Hill in Washington, Monday, March 20, 2017, during his confirmation hearing before the Senate Judiciary Committee. (AP Photo/Pablo Martinez Monsivais)

President Donald Trump said in his weekly address Friday that the Senate must confirm his Supreme Court nominee “to help preserve our democratic institutions for our children.”

“In the next few days, the Senate will be taking a very important step – one that will protect the rule of law and democratic way of life that is absolutely a birthright of all Americans,” Trump said, referring to the impending vote on Judge Neil Gorsuch’s nomination to replace the late Justice Antonin Scalia.

At least 35 Democratic senators do not see it that way.

“This judge does not reflect the promises that Donald Trump made to Missourians. The candidate Donald Trump farmed out this important decision to a right-wing group that fronts for large corporations and special interests,” Sen. Claire McCaskill, D-Mo., said in a Medium post Friday.

McCaskill, who faces a tough reelection fight in 2018, said she will vote to filibuster Gorsuch on the Senate floor next week. She added that she is uncomfortable with either option before her and lamented that the standoff will likely lead to “a Senate rule change that will usher in more extreme judges in the future.”

Nearly three dozen Democrats have now publicly voiced support for a filibuster of Gorsuch’s confirmation. If 41 Democrats vote to block the confirmation, Republicans have warned that they may resort to the so-called “nuclear option” to eliminate the minority’s power to filibuster Supreme Court nominees.

Democrats exercised that option in 2013 for lower court nominees and appointments in response to Republican obstruction. Republicans can do the same for the high court with a simple majority vote.

In a speech on the Senate floor Thursday, Senate Minority Leader Chuck Schumer, D-N.Y., rejected the premise that a filibuster would leave Republicans no choice but to resort to the nuclear option.

“It’s absolutely false. It’s complete hokum,” he said. “This is not some inevitable showdown. The Republicans control this body. They can choose to go nuclear or not. The ball is entirely in their court.”

Sarah Binder, a senior fellow at the Brookings Institution and professor at George Washington University, said Democrats may think they are calling Majority Leader Mitch McConnell’s bluff by forcing a vote on the nuclear option.

“We never really know whether or not Mitch McConnell has 50 votes until push comes to shove,” she said. Just two or three Republicans who are hesitant to empower future Democratic presidents could be enough to keep the filibuster alive and sink Gorsuch’s nomination.

Binder, author of “Stalemate: Causes and Consequences of Legislative Gridlock,” said Democrats are facing “inordinate pressure” from their base not to roll over for Trump’s nominees, and they have no reason to think Republicans will not just go nuclear over the next Supreme Court nominee. As a result, there is little political danger for most of them.

“I don’t really see the logic of Democrats pulling their punches,” she said.

Not everyone in the party is on board, though. Two lawmakers from states that Trump won in 2016, Sen. Joe Manchin of West Virginia and Sen. Heidi Heitkamp of North Dakota, have come out in support of Gorsuch. A few others have made clear they oppose Gorsuch but have not committed to a position on filibustering to stop him.

Manchin and Heitkamp’s defiance has not gone unnoticed by the Democratic base.

A coalition of progressive organizations plans to deliver a petition to the Democratic Senatorial Campaign Committee on Monday urging it not to allocate funds to any senator who votes to confirm or strikes a deal to advance Gorsuch.

A similar letter from 20 progressive groups was delivered to Democratic senators last week after reports surfaced of negotiations to put Gorsuch on the court and leave the filibuster intact.

Neil Sroka, a spokesman for one of those organizations, Democracy for America, said in an interview Friday, “Our belief is that a vote against a filibuster is a vote for Gorsuch and anyone who suggests otherwise is delusional.”

If McConnell has the votes to nuke the filibuster, and Sroka is not convinced he does, Republicans can do it whenever they want.

Sroka also questioned the “faulty reasoning” of red state Democrats who think siding with Trump will win them votes. “Looking like a Republican-lite candidate” will not get them reelected in 2018, he maintained.

“I see tremendous political risk for Democrats who aren’t standing with the millions of people who oppose the Gorsuch nomination,” he said.

Another group, Americans for All of Us, is already promoting a fundraising campaign to unseat “Corporate Democrat” Manchin in the 2018 primaries.

Republicans, meanwhile, have largely erased Merrick Garland—President Obama’s nominee to replace Scalia for whom they refused to even hold a hearing—from their narrative, complaining that Democrats are treating Gorsuch worse than the way they handled Obama’s first two Supreme Court nominations.

In a CNN op-ed Friday, Sen. John Cornyn, R-Texas, maintained that “no intellectually honest argument against Judge Gorsuch exists.”

“His qualifications are impeccable -- and exactly what you would expect to see for a Supreme Court nominee. His character is sterling,” he wrote, all of which Democrats would argue was also true of Garland.

“When you have an election, you can assume that a Republican president is going to choose Republicans for appointments and for federal judgeships, and the Democrats will do the same with their time in office,” White House Press Secretary Sean Spicer said at Thursday’s press briefing.

Democrats remember Garland, though, and they argue that the Republican blockade undermines any indignation or outrage they now express.

“Republican Senate leaders abused procedure last year in an unprecedented manner by refusing to even consider Garland’s nomination, and they now seem prepared to re-write the rules again on behalf of either Gorsuch or a future nomination,” said Democratic strategist Craig Varoga. “On this issue, they don’t have much in the way of moral high ground.”

Considering Republicans’ success in the 2016 election after eight months of refusing to even hold a hearing for Gorsuch, Binder said a filibuster may not appear as extreme as the GOP says it is.

“Based on how Republicans treated Merrick Garland, it will be hard to say Democrats overreached with the filibuster,” she said.

According to Arnie Arnesen, a liberal radio host based in New Hampshire, the mess the nomination process has become is the result of misbehavior on both sides over the years.

“There is no safe harbor here,” she said. “There is no right choice here.”

The Democratic base is far more enflamed right now than the Republican base, leaving the party’s senators little incentive to aid and abet Trump’s agenda.

“The Democratic base is so wild and angry, and they have to go home and face them,” Arnesen said.

Even if they succeed in holding the line for now, keeping Scalia’s seat empty for four more years seems untenable for Democrats. Schumer suggested Trump should work with Democrats to pick a consensus nominee, but that seems like a longshot.

“If Judge Gorsuch fails to garner 60 votes, the answer isn’t to irrevocably change the rules of the Senate; the answer is to change the nominee,” he said on the Senate floor Thursday. “It is NOT Gorsuch or bust.”

Noah Feldman, a law professor at Harvard and former clerk to Justice David Souter, argued in a recent Bloomberg op-ed that Democrats should holster the filibuster for now and “save it for a Supreme Court nominee who was truly terrible.”

Varoga dismissed that suggestion.

“Honestly, if you’re being held hostage and told that your hostage taker will kill you either now or in the future, what’s the point?” he asked.

The frenzy among progressives urging their lawmakers to fight Trump even when the fight cannot be won presages more confrontations like this in the months and years ahead, regardless of whether Gorsuch is confirmed.

According to Binder, some items on Trump’s agenda, like infrastructure spending, could draw bipartisan support, but neither side appears eager to rush to the table to negotiate. At the moment, Democrats seem to be testing out the same obstructionist approach Republicans took to the Obama administration.

“My sense is that Democrats are keeping an eye on the bigger picture,” she said. When they campaign in 2018 and 2020, “what do they want to claim that they stood up for?”

According to Sroka, being able to answer that question is exactly why the filibuster of Gorsuch is so important.

“The ideal long term strategy for Democrats…is stand up strong for democratic values, and the majority of the time, that’s going to mean opposing everything that Donald Trump does,” he said.

Arnesen had similar advice.

“Here’s what they do: they stand for something,” she said. “Constantly stand for something.”

Angry as they are, progressives also believe Democrats must have their own platform and their own ideas going forward to provide voters with an alternative to Trump’s policies instead of just voting “no.”

“It’s not about obstruction for obstruction’s sake,” Sroka said.

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