On Washington: Gorsuch Confirmation Presents Democrats With 2 Difficult Paths


WASHINGTON — When it comes to the Supreme Court nomination of Judge Neil M. Gorsuch, Senate Democrats appear to have two options: Get out of the way or get run over.

Senate Republicans’ enthusiastic backing of President Trump’s nominee ensures majority support even before the confirmation hearing begins Monday. But the Republicans also hope that enough Democrats are won over by Judge Gorsuch — or recognize the inevitability of his confirmation — that they join in efforts to head off an explosive showdown over a filibuster.

Should Democrats ultimately deny the judge the necessary backing to clear the way for an up-or-down vote, Republicans seem more than ready to take the potentially volatile procedural steps to eliminate the 60-vote threshold on high court picks and summarily install him over Democratic objections. In either case, Judge Gorsuch winds up on the Supreme Court, filling the vacancy created by Justice Antonin Scalia’s death in February 2016.

That ending will be hard to swallow for many Democrats and their activist allies, considering Senate Republicans completely stonewalled the nomination of Judge Merrick B. Garland made by President Barack Obama almost exactly one year ago, on March 16, 2016. They are not yet ready to concede that outcome.

“You are assuming, number one, that he will sail through the confirmation hearing, which may happen,” said Senator Richard Blumenthal of Connecticut, a member of the Judiciary Committee who, like other Democrats, has been aggressive in raising questions about the nominee’s conservatism and business-friendly rulings. “But in this very unpredictable and unconventional year, we are learning stuff that we never thought likely or even imagined.”

Democrats are approaching the hearing with multiple goals. First, they want to assess the nominee’s willingness and ability to stand up to Mr. Trump, given their expectation that issues such as the administration’s executive order on immigration will end up before the high court.

Second, they intend to press Judge Gorsuch to provide more detailed answers on fundamental constitutional issues than they say he was willing to provide in private meetings. Expect, for instance, to hear queries such as whether a law barring Muslims from entering the United States would be constitutional.

“What many of these judges, nominees from the hard right, have done in the last decade is simply said, ‘I’m not going to answer the question,’” said Senator Chuck Schumer of New York, the leader of the Senate Democrats.

He said he would consider such an approach by Judge Gorsuch a case of “hiding his views” from the public. “It is required, in my judgment, for them to lay out their views before they take such a powerful position,” Mr. Schumer said.

Democrats have another reason to emphasize any refusal by Judge Gorsuch to give unrestrained answers. They hope to be able to persuade at least a few Republicans that legitimate reasons beyond politics exist for objecting to the nominee, possibly dissuading them from joining any leadership move to eliminate the judicial filibuster if it comes to that.

Republicans are all in on Judge Gorsuch. And they anticipate that at least eight Democrats — led by those facing re-election in 10 states won by Mr. Trump — will eventually succumb to his appeal or intense political pressure to get on board.

“Judge Gorsuch deserves fair consideration by those who serve in this body, and he deserves an up-or-down vote here on the Senate floor,” said Senator Jeff L. Flake, an Arizona Republican who showed some discomfort with his party’s treatment of Judge Garland. “He should be confirmed overwhelmingly, and I am confident that he will be.”

Multiple Senate Republicans, starting with Mitch McConnell of Kentucky, the majority leader, have made it very clear they intend to see Judge Gorsuch on the Supreme Court and will do what they must to make that a reality. That is a not-so-subtle way of saying they will change Senate procedure to overcome a filibuster. They believe such a move is eminently justifiable, given that Senate Democrats did so in 2013 to eliminate the 60-vote filibuster against nominees except those for the Supreme Court.

Some Democrats believe that Republicans are posturing in an effort to intimidate the opposition and don’t yet have the votes to end the filibuster. They also worry their party could face a severe political reprisal from its energized liberal backers if they do not do whatever they can to oppose Judge Gorsuch no matter the consequences.

Other Democrats privately take a different view. They say the party shouldn’t test the limits on the Gorsuch nomination since his approval won’t change the ideological makeup of the court from when Justice Scalia served. They believe Democrats should hold their fire in the expectation of another vacancy. Then, if Mr. Trump goes with a staunch conservative, dig in against that person and argue that Republicans are instituting a partisan rules change to drastically reshape the court.

Mr. Blumenthal, for one, isn’t convinced by that argument.

“My personal view is that every seat on the Supreme Court is as important as every other,” said Mr. Blumenthal, who has pledged to use every tool available, including a filibuster, to hold up Judge Gorsuch’s nomination if his hearing answers don’t prove satisfactory. “We have a shot at defeating him if we hold our folks together and if they decline to blow up the Senate.”

Republicans say it is the Democrats who will be blowing up the Senate if they choose to block an up-or-down vote on a man Republicans consider superbly qualified. They say Democrats can lose one way or the other, but they will lose.



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