Judge Neil Gorsuch introduced himself on Capitol Hill as a “faithful servant of the Constitution and laws of this great nation” on Monday, but his road to a Supreme Court seat still runs through Missouri, Florida and eight other states where vulnerable Democratic senators face re-election next year.
Republicans praised and Democrats doubted Gorsuch during the four-hour Senate Judiciary Committee hearing devoted to opening statements, including one by Gorsuch where he identified the late conservative Justice Antonin Scalia as a mentor.
“In my decade on the bench, I’ve tried to treat all who come before me fairly and with respect,” Gorsuch said, adding that “my decisions have never reflected a judgment about the people before me, only a judgment about the law, the facts and the issue in each particular case.”
The 49-year-old Gorsuch faces pointed questioning Tuesday and, perhaps, Wednesday in his bid to replace Scalia. He faces, as well, a threatened filibuster, which the Senate would need 60 votes to end. Republicans have 52 seats.
That would put the power to halt the nomination in Democratic hands, but there’s little talk of that strategy among Senate Democratic leaders. While there might be an effort to filibuster, it doesn’t seem as if it will be rigorously enforced by the leaders, who know they need to protect vulnerable members, particularly in 10 states President Donald Trump won last year where the party’s senators are up for re-election next year.
Those Democrats are under particular pressure from both ends of the political spectrum on the Gorsuch nomination, noted Jennifer Duffy, a senior editor for The Cook Political Report, where she tracks U.S. Senate and governors’ races.
These vulnerable Democrats have to master a “high wire act” of not angering the voters in their states versus not angering their party, Duffy said.
“I’m not really sure that there’s a middle ground there,” she said. “Somebody’s going to get pissed off and members have to decide, frankly, which is more important to them.”
Some Democrats may vote to end a filibuster but also vote against Gorsuch. If a filibuster is sustained, Senate Majority Leader Mitch McConnell, R-Ky., could move to change Senate rules so filibusters can no longer be used against Supreme Court nominees.
Rhetorically, though, Democrats will be aggressive. Senators foreshadowed on Monday their intent to press Gorsuch on hot-button issues including the abortion rights secured in the high court’s 1973 Roe v. Wade decision. He has served since 2006 on the Denver-based 10th U.S. Circuit Court of Appeals, participating by his count in more than 2,700 appeals.
“Judge Gorsuch has not had occasion to rule directly on a case involving Roe,” said Sen. Dianne Feinstein of California, the panel’s senior Democrat. “However, his writings do raise questions.”
With Republicans enjoying an 11-9 advantage on the Senate Judiciary Committee, Gorsuch’s nomination is nonetheless assured of reaching the Senate floor, possibly within a week or two.
“Judge Gorsuch is no ordinary nominee,” said Republican Sen. Ted Cruz of Texas, adding that the Columbia, Harvard Law School and Oxford graduate “is brilliant and has an impeccable academic record.”
The nominee before us understands that any judge worth his salt will regularly issue judgments with which they disagree as a matter of policy – all because they think that’s what the law fairly demands.
Sen. Chuck Grassley, R-Iowa
The senators to watch include Democratic Sen. Claire McCaskill of Missouri. She’ll run for re-election next year in a state that Trump won handily by nearly 19 percentage points. Already this year, McCaskill has voted to confirm 10 of Trump’s Cabinet nominees while opposing eight.
From the right, the conservative Concerned Veterans for America has made over 30,000 calls to Missouri residents asking them to urge McCaskill to confirm Gorsuch. The group also recently launched a targeted web ad and direct mail campaign in support of Gorsuch. From the left, Democratic activists have warned McCaskill against going soft on Republican nominees.
“We are going to primary the (expletive) out of you,” one commenter proclaimed Jan. 31, after McCaskill said on Twitter that “We should have a full confirmation hearing process and a vote on ANY nominee for the Supreme Court.”
The “ANY nominee” reference was to Judge Merrick Garland, the Democratic nominee whom Republicans refused to consider for nearly 10 months last year. Democrats on Monday repeatedly raised Garland’s fate, a politically delicate topic about which Gorsuch is sure to be asked Tuesday.
“Your nomination is part of a Republican strategy to capture our judicial branch of government,” Democratic Sen. Dick Durbin of Illinois told Gorsuch. “That’s why Senate Republicans kept the Supreme Court seat vacant for more than a year.”
Republican Sen. Lindsey Graham of South Carolina countered that “if the shoe were on the other foot,” Democrats would have likewise stymied a GOP nominee. Graham is one of only a handful of Senate Republicans who voted for the Obama administration’s two successful Supreme Court nominees, Justices Sonia Sotomayor and Elena Kagan.
Trump states where Senate Democrats face re-election are Florida, Indiana, Michigan, Missouri, Montana, North Dakota, Ohio, Pennsylvania, West Virginia and Wisconsin.
Despite the grass-roots heat and talk of a possible filibuster, Democratic Sen. Jon Tester of Montana hasn’t felt any pressure from the rest of his caucus on the Gorsuch nomination and remains undecided, said his spokesman, Dave Kuntz.
Democratic Sen. Bob Casey of Pennsylvania likewise remains undecided, though spokesman John Rizzo noted that “he’s said he has real concerns about some parts of (Gorsuch’s) record.”
Trump’s margin of victory in Pennsylvania was less than 1 percentage point, much narrower than in states like Montana, Missouri or West Virginia, where Sen. Joe Manchin is widely considered to be one of the Democrats most likely to swing toward Gorsuch. Trump won in West Virginia by a 68-22 percent tally.