Two Democrats facing tough re-elections in GOP states said Thursday they will vote for President Donald Trump’s Supreme Court nominee, even as the Senate Democratic leader strongly warned Republicans against changing Senate rules to confirm Judge Neil Gorsuch.
Minority Leader Chuck Schumer of New York had tough words for his Republican counterpart, Majority Leader Mitch McConnell of Kentucky, in an interview with The Associated Press.
“He’s bound and determined to change the rules and trample on Senate tradition” in order to get a conservative justice approved, Sen. Schumer said of Sen. McConnell. “Let the public judge whether that is a good thing.”
Sen. Schumer spoke shortly after Sens. Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota became the first Democrats to announce their support for Judge Gorsuch, a Denver-based appellate judge. They join all 52 Senate Republicans, who argue that Judge Gorsuch is impeccably qualified to join the High Court and accuse Democrats, and Schumer in particular, of playing politics by opposing him.
The Senate confirmation vote is expected late next week. Unless 60 senators support Judge Gorsuch — which would require six more Democrats to join Heitkamp and Manchin — Republicans would have to unilaterally change Senate rules to allow him to be confirmed with a simple majority vote in the 100-member Senate.
That scenario is looking increasingly inevitable, even though it is known on Capitol Hill as the “nuclear option” because it would amount to a dramatic departure from Senate norms of bipartisanship and collegiality. Although Sen. McConnell has yet to formally announce plans to take the step, Republican senators fully expect it and are prepared if regretful.
Sen. Schumer conducted back-to-back interviews with several major news outlets Thursday to argue that it will be the fault of Republicans, not Democrats, if the rules change happens.
“Senate Republicans are acting like if Gorsuch doesn’t get 60 votes they have no choice but to change the rules,” Schumer said. “That is bunk.” He claimed that President Trump should produce a more mainstream nominee, instead.
As for Sens. Manchin and Heitkamp, Sen. Schumer said: “I’ve made my arguments to every member, including them, and each member is going to make his or her own decision.”
In his statement, Sen. Manchin said: “I hold no illusions that I will agree with every decision Judge Gorsuch may issue in the future, but I have not found any reasons why this jurist should not be a Supreme Court Justice.”
Sen. Heitkamp said she expects Judge Gorsuch to follow through on his promise of an independent judiciary that “acts as a proper check and balance on the other two branches of government.”
In all, 34 Democrats and counting have said they will oppose Gorsuch.
Also Thursday Missouri Democratic Sen. Claire McCaskill, who says she is torn over how to vote, highlighted the dilemma for Democratic senators running next year in states that President Trump won.
Should they vote for Judge Gorsuch and anger their liberal base? Or vote to block him and prompt Republicans to permanently change Senate rules to eliminate the filibuster?
“It is obviously a really difficult situation,” McCaskill told reporters.
If confirmed, Judge Gorsuch would replace another conservative, Justice Antonin Scalia, who died in February 2016. But if one of the more liberal justices dies or retires, Trump’s next pick could fundamentally alter the balance of the court. Justice Ruth Bader Ginsburg is 84 and fellow liberal Justice Stephen Breyer is 78. Justice Anthony Kennedy, the pivotal vote closest to the court’s center, is 80.
Changing Senate rules would not be unprecedented. In 2013, Democrats were in the majority under the leadership of Sen. Harry Reid of Nevada and upset about the blockage of President Barack Obama’s nominees to a powerful appellate court. The Democrats pushed through a rules change lowering the vote threshold on all nominees except for the Supreme Court from 60 to a simple majority.
Sen. Schumer conceded Thursday that “We made one mistake, we shouldn’t have changed the rules for lower court judges … but we never did it for Supreme Court. This is a much bigger mistake on their behalf.”
And he defended Democratic plans to filibuster Judge Gorsuch, even though that step has very rarely been used against Supreme Court nominees. Schumer pointed to the treatment last year of Judge Merrick Garland, Obama’s Supreme Court nominee, who never even got a hearing as Sen. McConnell led a Republican blockade.
“Judge Garland didn’t even get the opportunity to be filibustered so let’s not say this is unprecedented,” Schumer said.