Senate Democrats are vowing to go to war over Donald Trump’s Supreme Court nominee, the very conservative but impeccably pedigreed Neil Gorsuch.
But below the initial bluster is a web of tricky political calculations that would seem to make outright Democratic obstruction of the president’s first Supreme Court pick a less-than-sure bet.
Whether Gorsuch gets confirmed will depend on a small but influential cadre of Democrats, at least eight of whom will be needed to install Gorsuch as the next justice. Several are classic institutionalists prone to show deference to presidential nominees, even hotly controversial ones. Others are perennial swing votes who don’t want to get tagged as obstructionist — even though Republicans only benefited politically from Senate Majority Leader Mitch McConnell’s blockade of Merrick Garland.
And a group of Democrats up for reelection in 2018 will face intense political pressure back home in their conservative states to support Gorsuch — as well as a fired-up liberal grass roots pushing Democrats to oppose Trump at every turn.
“It’s difficult because there are various degrees of opposition,” said Illinois Sen. Dick Durbin, the second-ranking Senate Democrat. “There are some who are scorched earth: ‘Don’t give him anything, and why haven’t you impeached him?’ If we repeated [McConnell’s] strategy, shame on us.”
Here is Politico’s look at the key Democratic senators to watch on the Gorsuch battle — and why:
Republicans operate under the assumption that they’ve got five Democratic votes in the bag: the quintet who are up for reelection in states that Trump overwhelmingly won. Those Democrats, the thinking goes, will need to do anything to get on the right side of Trump’s voters, no matter how mad they are over the treatment of Garland.
Just don’t tell that to the senators themselves.
“This idea that somehow you can bully me into doing something that I don’t think is right for the country by saying ‘You’re from a red state,’ it just gets old,” sighed Sen. Heidi Heitkamp (D-N.D.). “This idea that, ‘Oh, she’s up for reelection and she’s going to be scared’? Anyone who says that about me doesn’t know me that well.”
Heitkamp said she is genuinely undecided on Gorsuch, including whether to back a potential filibuster of him. Ditto for Sen. Claire McCaskill of Missouri, who said Democrats will be far more thoughtful about Gorsuch than Republicans were about Garland.
“I mean, how big a hypocrite am I going to be?” fumed McCaskill. “I am not going to model my behavior after their terribly bad, historically, precedent-setting behavior. I’m not doing that.”
McCaskill may be the least likely of the five to support Gorsuch, given her fiery style of politics and fierce defense of abortion rights. Sen. Joe Manchin (D-W.Va.) is on the other end of the spectrum: He decried liberals’ obstruction and met with Gorsuch on Wednesday, a day after he was nominated.
Somewhere in the middle are Heitkamp and Sens. Joe Donnelly of Indiana and Jon Tester of Montana. Tester said that he’s concerned about Gorsuch’s views on assisted suicide and “end-of-life” issues, which Tester said amounts to “taking away freedoms.”
“The media’s got it all wrong that we’re forced into doing anything,” Tester said. “The only thing that I’m going to do is do my job as a U.S. senator. And that’s, do more than they did for Merrick Garland.”
Dianne Feinstein of California
As the ranking member on the Judiciary Committee, Feinstein will lead the Democratic cross-examination of Gorsuch, who has more than a decade of opinions from the Tenth Circuit as well as a voluminous record of writings and remarks for senators to scrutinize.
Feinstein has already made clear she has concerns about Gorsuch: For one, he sided with Hobby Lobby when it protested Obamacare’s contraceptives requirement on religious grounds.
But Feinstein is no stranger to wrath from the liberal base over judicial nominees. She was a key ally for Republicans almost a decade ago in the confirmation fight over Judge Leslie Southwick in Mississippi, facing a backlash from progressives who opposed Southwick’s record on race issues and gay rights.
As for Supreme Court nominees under a Republican White House, Feinstein voted against Chief Justice John Roberts in 2005, and she supported the filibuster of Samuel Alito the next year.
Feinstein is also mindful of the politics that the so-called “nuclear option” will play in the Gorsuch fight. Republicans are toying with deploying the procedural maneuver to change the filibuster threshold for Supreme Court nominees to a mere simple majority.
“There’s a certain danger in changing rules,” Feinstein said Wednesday. “If you look back, if hindsight is helpful, maybe it wasn’t smart to change them in the first place” for nominees other than high court nominees.
Another factor: Speculation is mounting that she may retire in 2018, which could free Feinstein to do as she pleases without political pressure.
Deferential Democrats: Sens. Bill Nelson of Florida and Tom Carper of Delaware
When Democrats in 2006 tried to mount a filibuster against Alito — the only such move in recent memory for a Supreme Court nominee — a smaller band of Democrats nonetheless helped Republicans advance Alito toward the finish line.
Among those Democrats still in the Senate today are Bill Nelson of Florida and Tom Carper of Delaware.
The pair of veteran senators would seem to be prime targets for Republicans to pick off in their quest for 60. Carper said Wednesday that he agreed Gorsuch should be held to a 60-vote standard, but that it premature to say he’d show Gorsuch the same courtesy he afforded to Alito.
“When we decided we should keep the 60-vote threshold for Supreme Court justices, that was the right thing to do,” Carper said, stressing the need for a “consensus” candidate. But “we’ve got a lot to learn about him. I’m still learning how to spell his name.”
Nelson declined to elaborate much on how he plans to approach the Gorsuch nomination. Like nine other Democrats, Nelson is up for reelection next year in a state Trump won in November.
“I am concerned about his positions on the suppression of voting rights and the undisclosed and unlimited campaign money,” Nelson said Wednesday. “So I look forward to asking those questions of him.”
Perennial swing votes: Sens. Chris Coons of Delaware and independent Angus King of Maine
Sen. Chris Coons (D-Del.) made it clear he was up for grabs during the recent fight over confirming Rex Tillerson for secretary of state. And he’s already showing signs that he’ll be even more deliberative with the high court nominee.
Careful to avoid being seen as obstructionist, Coons said he supports Gorsuch getting a hearing and a vote in committee, but wouldn’t commit to anything beyond that. When asked whether he supported the call from liberal Democrats to insist on a 60-vote threshold for Gorsuch, Coons declined to answer directly.
“I think we should let Judge Gorsuch have his hearing in front of the Judiciary Committee first,” said Coons, a member of the committee, on Wednesday.
His approach echoes that of independent Sen. Angus King of Maine, who has already shown some support for Trump’s nominees when Democrats did not.
King supported Tillerson as the vast majority of the Democratic caucus (including Coons) opposed him. The Maine senator, who caucuses with Democrats, occasionally votes against the party on near party-line votes.
King said in an interview that he’s undecided on Gorsuch going into the process and that he will spend the next two months digging into legal opinions rather than the partisan back-and-forth over the Supreme Court.
Yet King also said he shouldn’t be counted on to wave through Trump’s nominee.
“The Constitution doesn’t say anything about deference to the president. The Constitution says the president nominates and the Senate advises and consents,” King said. “I’m going to look at qualifications, judicial temperament, opinions, history, and that’s the basis on which I make a decision.”
He said his position on a filibuster is weeks away.
John Bresnahan contributed to this report.