- The Washington Times - Sunday, April 2, 2017

Democrats appeared Sunday to have rallied enough support for a filibuster of Judge Neil Gorsuch, forcing Republicans to prepare to trigger the “nuclear option” to install President Trump’s first nominee to the U.S. Supreme Court this week.

Sen. Jon Tester’s announcement Sunday that he’ll join fellow Democrats’ filibuster was the latest signal that Republicans probably won’t be able to rally the 60 votes needed to overcome the blockade on Judge Gorsuch, a well-regarded jurist who’s been ensnared by anti-Trump politics. 

“Looks like we have the 60 — the votes to prevent Gorsuch from getting on,” Senate Minority Leader Charles E. Schumer had said earlier Sunday on NBC’s “Meet the Press,” claiming victory in the filibuster fight.

Republicans said no matter what Democrats do, the outcome will be the same: Judge Gorsuch will be sitting on the court in a matter of days. All that remains is whether Democrats force — and Republicans follow through on — a major change to filibuster rules.

“I can tell you that Neil Gorsuch will be confirmed this week,” Senate Majority Leader Mitch McConnell said, countering Mr. Schumer on NBC. “How that happens really depends on our Democratic friends. How many of them are willing to oppose cloture, on a partisan basis, to kill a Supreme Court nominee? Never happened before in history, in the whole history of the country.”

Mr. Tester becomes the second senator heavily targeted Democratic senator to oppose Judge Gorsuch, citing concerns over abortion and campaign finance — both areas where the judge would only say he respects precedent, but wouldn’t commit to upholding the one and overturning the other, as Democrats want.

“It’s clear to me that, if confirmed, Judge Gorsuch would threaten our access to a doctor and endanger the constitutional rights of law-abiding citizens,” Mr. Tester said.

He and Sen. Claire McCaskill, a Missouri Democrat who announced her “No” vote Friday, are both up for re-election in states Mr. Trump easily won last year. 

Republicans had been counting on electoral pressure to earn their backing for the nominee. Indeed, Sens. Joe Manchin of West Virginia, Heidi Heitkamp of North Dakota and Joe Donnelly of Indiana, all up for election in Trump states, announced in the last few days that they will support Judge Gorsuch.

“I believe that he is a qualified jurist who will base his decisions on his understanding of the law and is well-respected among his peers,” said Mr. Donnelly, who announced his decision Sunday afternoon. 

But, without Ms. McCaskill and Mr. Tester, Republicans will almost have to run the table of the remaining undecided senators.

One remaining target is independent Sen. Angus King of Maine. Another is Sen. Michael Bennet, a Democrat from Colorado, which is where Judge Gorsuch lives. Mr. Bennet is facing intense pressure to back the home-state hero.

But even if both these men backed the judge, combined with Mr. Donnelly, Mr. Manchin and Ms. Heitkamp, that still accounts for just 57 of the 60 votes needed to overcome a filibuster.

That means the judge’s fate comes down to four other Democrats — all liberal stalwarts in heavily Democratic states — who have yet to announce their stance.

The lobbying of Democrats has intensified. In Montana, three key judges and a former judge wrote a letter to senators endorsing Judge Gorsuch for the Supreme Court, adding to the pressure on Mr. Tester to break with his party.

“Judge Gorsuch will provide valuable insight and perspective from the Western states on a Supreme Court that is dominated by Justices hailing from the Eastern seaboard,” the letter reads. “Judge Gorsuch admitted to preferring dry flies to wet flies during the lengthy confirmation hearings, and that’s an opinion all Montanans can respect.”

The nuclear option involves an arcane procedural tactic that lets the Senate change the rules by majority vote. Since the filibuster is merely a Senate debating tactic, its power can be curtailed through a rule change.

Republicans first considered the tactic in 2005, when Democrats were filibustering President George W. Bush’s appeals court nominees, but ultimately backed off after a gang of renegade Democrats and Republicans cut a deal.

Democrats actually triggered the nuclear option four years ago, kneecapping the power of the filibuster for every other nominee except the Supreme Court.

Now, with the nuclear option looking increasingly likely, conservatives are trying to stiffen GOP senators’ spines against another last-minute deal like the renegades struck in 2005.

Some Democrats reportedly are attempting to strike an agreement in which they would agree not to filibuster Judge Gorsuch in exchange for a promise that they would be allowed to filibuster — and the GOP wouldn’t use the nuclear option — on a future Trump pick.

The conservative activists who have backed Judge Gorsuch say such a deal makes no sense for Republicans. If Judge Gorsuch, who has won exceptional reviews for his legal credentials, isn’t acceptable, the activists say, there’s nobody Mr. Trump could pick who would satisfy Mr. Schumer or the liberal groups itching for a fight.

“Chuck Schumer is engaged in a scorched-earth, first-ever partisan filibuster to try and block Judge Gorsuch. If necessary, the constitutional option should be used to preserve Senate tradition,” said Carrie Severino, chief counsel at the conservative Judicial Crisis Network, which has run millions of dollars of ads backing the Gorsuch pick.

Liberal activist groups aren’t keen on a deal either, insisting that Democrats do whatever they can to keep Judge Gorsuch off the bench.

Still, those fighting over Judge Gorsuch have their eye firmly on the next court fight. Judge Gorsuch would replace the late Justice Antonin Scalia, who was also a Republican appointment, so even if the judge were conservative, he wouldn’t alter the ideological balance of the court from where it was little more than a year ago.

But if one of the Democrat-appointed justices were to retire and Mr. Trump were to pick a successor, that could be a major change, tilting the court toward the right.


• Stephen Dinan can be reached at sdinan@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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