Senate hearings on Supreme Court nominee Neil Gorsuch ended Thursday on a confrontational note, with the body’s top Democrat vowing a filibuster that could complicate Gorsuch’s expected confirmation and ultimately upend the traditional approach to approving justices.
Under Senate rules, it requires 60 votes to overcome such an obstacle. Republicans eager to confirm Gorsuch before their Easter recess — and before the court concludes hearing the current term of cases next month — have only 52 senators.
Republicans have vowed Gorsuch will be confirmed even if it means overhauling the way justices have long been approved. Traditionally, senators can force the Senate to muster a supermajority just to bring up the nomination of a Supreme Court justice. If that is reached, the confirmation requires a simple majority.
In a speech on the Senate floor, Schumer said: “If this nominee cannot earn 60 votes — a bar met by each of President Obama’s nominees and George Bush’s last two nominees — the answer isn’t to change the rules. It’s to change the nominee.”
The Democrats’ liberal base has been pressuring senators to block Trump’s nominees across the government. But Schumer stopped short of saying that his entire Democratic caucus would join him in opposition to Gorsuch, leaving political space for some Democrats to find ways to work with Republicans.
Democrats may not have the votes to block Gorsuch, 49, who has been on the Denver-based U.S. Court of Appeals for the last decade and was nominated to fill the Supreme Court seat left vacant since Justice Antonin Scalia died unexpectedly in February 2016.
Several Democrats, especially those facing upcoming reelection battles in states that Trump won, are facing opposition from conservative organizations bankrolling a multimillion-dollar ad campaign designed to bolster Gorsuch.
There are also competing views among Democrats about whether to filibuster Gorsuch’s nomination — which could provoke the Republican majority to rewrite the rules — or instead avoid confrontation and preserve the filibuster threat for the future. Retaining the filibuster could force Trump to select a relatively moderate nominee if in the coming years he gets a chance to replace a second Supreme Court justice.
Among recent Supreme Court nominees, the 60-vote threshold has not caused a problem. President Barack Obama’s choices of Sonia Sotomayor and Elena Kagan each received more than 60 confirmation votes. Samuel A. Alito Jr., chosen by President George W. Bush, was confirmed 58 to 42 in 2006, but 72 senators voted to defeat a possible filibuster and allow his confirmation vote to go forward. Indeed, only Alito — among the last 16 Supreme Court nominees — was forced to clear the supermajority hurdle to break a filibuster.
In announcing his confrontational approach, Schumer said that Gorsuch “was unable to sufficiently convince me that he’d be an independent check” on Trump. Schumer said later that the judge is “not a neutral legal mind but someone with a deep-seated conservative ideology,” hand-picked for Trump by conservative legal groups.
Thomas C. Goldstein, a Supreme Court practitioner and co-founder of SCOTUSblog, said that Democrats on the Senate Judiciary Committee did not present a compelling case that Gorsuch was either an illegitimate nominee or that he was outside the conservative mainstream.
“None of the Democrats set the table” for a filibuster, Goldstein said. He speculated that one option for some Democrats would be to allow an up-or-down vote, and then to vote against confirmation.
In addition to Schumer, Sens. Thomas R. Carper (D-Del.), Robert P. Casey Jr. (D-Pa.) and Ron Wyden (D-Ore.) announced Thursday that they would filibuster Gorsuch. Casey is one of 10 Democratic senators running next year in a state that Trump won.
The Judicial Crisis Network, which is spending at least $10 million on television ads to persuade Democratic senators to support Gorsuch, called Casey and other Democrats opposing Gorsuch “totally unreasonable” because “they will obstruct anyone who does not promise to rubber stamp their political agenda from the bench.”
Senior Republicans have vowed that Gorsuch will be confirmed no matter what — a veiled threat to Democrats that they might use the nuclear option to change the way senators confirm Supreme Court justices.
“If Judge Gorsuch can’t achieve 60 votes in the Senate, could any judge appointed by a Republican president be approved with 60 or more votes in the Senate?” Senate Majority Leader Mitch McConnell (R-Ky.) said this week.
Much of the Democratic resistance to Gorsuch centers on the GOP’s decision last year to block consideration of Judge Merrick Garland, Obama’s choice to replace Scalia.
But moderate Democrats have said they are hoping that the two parties can come to an agreement that leads to Gorsuch’s confirmation and the preservation of current Senate traditions.
Sen. Joe Manchin III (D-W.Va.), seen as the Democrat most likely to support Gorsuch, said he needed to hear more from the nominee but warned Democrats against risking the deployment of the nuclear option.
“I haven’t completely made up my mind. I’m going to go talk to him next week; then I’ll make my decision,” Manchin said. “But I just think the Senate is on a slippery slope.”
After two days of answering senators’ questions, Gorsuch was not present on Thursday as civil rights leaders, conservative activists, professors, judges and former clerks debated whether he belonged on the high court.
On the final day, there were many empty seats in the hearing room, including on the dais as senators dropped in and out to cast votes.
Opponents expressed concern about Gorsuch’s record on civil liberties, election laws and reproductive rights. Gorsuch’s approach “reflects a narrow view of civil rights and a deep skepticism of protecting those rights in the courtroom,” said Kristen Clarke, head of the Lawyers’ Committee for Civil Rights Under Law.
Gorsuch’s former law clerks and other attorneys countered criticism that as an appellate judge he has favored corporations and employers over individuals. They cited his sympathy and respect for litigants and rulings to protect the rights of religious minorities and prisoners.
Senior U.S. District Judge John L. Kane, also from Colorado, assured the committee that Gorsuch knows that his social, political and religious views have no place on the bench.
“Gorsuch is not a monk, but neither is he a missionary or an ideologue,” Kane said.
Human rights advocates raised concerns about Gorsuch’s tenure at the Justice Department during Bush’s presidency, when he worked on cases related to the detention of terrorism suspects. Gorsuch helped draft language designed to support Bush’s claims of executive authority on matters of torture and the treatment of detainees.
Gorsuch told the committee this week that he was merely acting as an attorney for his then-client.
But Jameel Jaffer, head of the Knight First Amendment Institute at Columbia University, said Gorsuch volunteered for the duty. “It is not the case . . . that Judge Gorsuch happened to be a government lawyer at a time when the government — his client — endorsed torture and a sweeping view of presidential power. The government endorsed those things first, very publicly, and then Judge Gorsuch chose his client.”
The committee also heard a highly personal account directly from Jeff Perkins, the father of a child with autism whom Gorsuch ruled against in 2008. Perkins called the decision by the U.S. Court of Appeals for the 10th Circuit “devastating,” requiring one parent to move to another school district to get his son, Luke, the education he needed.
Gorsuch’s 2008 decision came under scrutiny on Wednesday after the Supreme Court unanimously ruled in another case that the standard Gorsuch applied for assessing the educational benefit for students with disabilities was too low.
Scott Clement and David Weigel contributed to this report.
