Democrats’ Vow to Filibuster Ensures Bitter Fight Over Gorsuch

WASHINGTON — Senate Democrats on Monday secured the votes necessary to filibuster the Supreme Court nomination of Judge Neil M. Gorsuch, presaging a bitter confrontation this week that threatens to further unravel a chamber where bipartisanship and decorum have eroded for years.

The show of solidarity from the minority came as Republicans advanced Judge Gorsuch’s nomination in the Judiciary Committee, clearing the way for his consideration on the Senate floor.

Republicans vowed Monday to confirm him by the end of the week. The implication was not subtle: If they must change longstanding rules to bypass the filibuster, elevating President Trump’s selection on a simple majority vote, they will not hesitate.

“We have no alternative,” Senator Orrin G. Hatch of Utah, the longest-serving Republican in the Senate, said alongside his Judiciary Committee colleagues after a party-line vote, 11 to 9.

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It was the beginning of what both parties consider a seminal week on Capitol Hill, likely to fundamentally reshape the way the Senate conducts its business.

Though lawmakers have long deployed the filibuster — a procedural device that allows for continued debate to block or delay a vote — to suit their circumstances, Supreme Court confirmations have been viewed as another matter, insulated at least somewhat from the body’s most partisan passions.

Under current rules, Republicans cannot break the filibuster if fewer than 60 senators vote to move the nomination to an up-or-down Senate vote. That would require eight Democrats to join the 52-seat Republican majority. As of Monday evening, only four Democrats had announced support for an up-or-down vote.

Judge Gorsuch’s fate will depend on whether Republicans follow through on plans for the so-called nuclear option, as Mr. Trump has urged, to circumvent the filibuster for a Supreme Court pick.

“The Republicans are free actors,” Senator Chuck Schumer of New York, the Democratic leader, said Monday, urging a withdrawal of the nomination if Judge Gorsuch cannot earn 60 votes. “They can choose to go nuclear or they can sit down with Democrats and find a way forward that preserves the grand traditions of this body.”

Such was the theme of Monday’s proceedings: a series of meditations on grand traditions, a resignation to their imminent demise and an insistence that the other side was to blame.

During the committee vote, senators took turns lamenting the state of the institution they serve, although none pledged to buck their own party on either the Democratic filibuster or the Republican push for a rule change.

What comes next, it appears, is a slow-motion dismantling of senatorial standards and practice, scheduled for demolition over several days.

“This is a new low,” Senator Mitch McConnell of Kentucky, the Republican majority leader, said of the likely filibuster, “but not entirely surprising.”

Of course, Democrats identify Mr. McConnell as the chief purveyor of new lows. From the beginning, the Gorsuch nomination has been shadowed, in large measure, by Judge Merrick B. Garland, whom President Barack Obama nominated in March 2016 after the death of Justice Antonin Scalia the month before. Mr. McConnell led Republicans in refusing to even consider the nomination during a presidential election year.

But Democrats insist that their opposition to Judge Gorsuch is not about payback. They have cited his record on workers’ rights and his degree of independence from Mr. Trump and conservative groups like the Federalist Society, among other concerns.

Perhaps no member sounded as pained on Monday as Senator Patrick J. Leahy, Democrat of Vermont and the Senate’s longest-serving member.

He first argued that the treatment of Judge Garland had convinced Judge Gorsuch that “this committee is nothing more than a partisan rubber stamp,” allowing the nominee to evade straightforward questions during his hearings.

Mr. Leahy suggested that Mr. McConnell had no qualms about “forever damaging the United States Senate.”

And he wondered aloud how the Capitol had become so unrecognizable to him, after 42 years.

“I cannot vote solely to protect an institution when the rights of hard-working Americans are at risk,” Mr. Leahy said. “Because I fear that the Senate I would be defending no longer exists.”

Republicans have in turn faulted Democrats for what they call two escalations of hostilities: a series of filibusters against judicial nominees under President George W. Bush and a vote in 2013, when Democrats controlled the Senate, to bar filibusters for the president’s appeals court and executive branch nominees. That shift left the filibuster for Supreme Court nominations untouched.

Supporters of Judge Gorsuch have appeared incredulous that the Senate — whose members approved Justice Scalia unanimously and did not use a filibuster for even some fiercely contested nominees like Justice Clarence Thomas — could come undone over a judge they view as plainly qualified and uncontroversial.

“It’s pathetic,” Mr. Hatch said, “that they’re so stupid that they picked somebody of his quality and ability” to oppose.

Senator Charles E. Grassley, Republican of Iowa and the committee’s chairman, accused Democrats of searching in vain for credible reasons to vote against “a judge’s judge.”

Senator Ted Cruz, Republican of Texas, pressed the case that Judge Gorsuch’s nomination carried a “superlegitimacy” because voters last year knew that the next president would get to fill the seat. (Before the election, he had suggested trying to leave the seat open indefinitely if Hillary Clinton won.)

Yet even some Republicans who planned to support a rule change if necessary said they worried about what would come of it.

Senator Lindsey Graham, Republican of South Carolina, predicted that a simple-majority threshold for Supreme Court confirmations would lead to the elevation of future judges who are “more ideological, not less.” Every Senate race, he added, would effectively become a referendum on the Supreme Court.

“This is going to haunt the Senate, it’s going to change the judiciary, and it’s so unnecessary,” Mr. Graham said after the vote.

Though some Democrats have expressed concerns, in public and private, about pushing ahead with a filibuster, they are also aware of their political hand: The party’s progressive base has called on lawmakers to oppose Mr. Trump at every turn, reminding them of the extraordinary dynamics at play.

Senator Richard Blumenthal, Democrat of Connecticut, linked his vote opposing Judge Gorsuch, at least in part, to the current investigations into connections between Mr. Trump’s orbit and Russia.

“It is about the constitutional crisis that may well be looming,” he said, arguing that Judge Gorsuch had not demonstrated sufficient independence from Mr. Trump. Mr. Blumenthal added that the prospect of the Supreme Court needing to enforce a subpoena against the president was “far from idle speculation.”

Even lighter fare on Monday could not coax consensus from committee members. At one point, Mr. Grassley asked the senators how they would like to manage their lunch schedule: a half-hour break for everyone or an uninterrupted hearing with senators peeling off one by one to eat.

The room appeared split. “Could the majority cater this lunch?” asked Senator Al Franken, Democrat of Minnesota. A few Republicans raised their hands to convey a desire to keep going.

Senator Dianne Feinstein of California, the committee’s top Democrat, smiled slightly, her hands clasped. The committee, she said quietly, could not even agree on lunch.

The Senate Judiciary Committee met to consider the nomination of Judge Neil M. Gorsuch on Monday in Washington. Credit Gabriella Demczuk for The New York Times

What You Need to Know About the Senate Filibuster

WASHINGTON — The Supreme Court nomination of Judge Neil M. Gorsuch is now going to the Senate floor. The Senate minority leader, Chuck Schumer of New York, has pledged to lead Democrats in a filibuster of the nomination. If he does, the majority leader, Mitch McConnell of Kentucky, has vowed to change Senate rules to clear the way for Judge Gorsuch. The potential showdown has raised interest in the peculiar Senate filibuster rule.

What is a filibuster?

A filibuster is an effort by a minority of lawmakers to delay or block the Senate from voting on a bill or a confirmation. By exploiting the chamber’s rules for full debate on an issue, the minority can indefinitely obstruct something that has majority support. According to the Senate Historical Office, the term traces back to a Dutch word meaning “pirate.”

How does it work?

The Senate generally operates by unanimous consent. If any senators refuse to consent to holding an up-or-down vote on Judge Gorsuch’s nomination, the Senate has to decide whether to overrule them. It would do so by holding a “cloture” vote on whether to end debate and proceed to a final vote. It takes 60 votes to invoke cloture, so 41 senators can indefinitely block a confirmation by refusing to vote for cloture.

What is the ‘nuclear option’?

This is what Mr. McConnell has threatened if Democrats muster enough votes to filibuster Judge Gorsuch. By a simple majority, Republicans would change the Senate’s rules to abolish the ability of a minority to filibuster Supreme Court confirmation votes. The term was apparently coined by Senate Republicans around 2003, when they threatened to use the tactic to defeat Democrats who were blocking votes on some of President George W. Bush’s appeals court nominees. It was meant to evoke horror, because the power play would undermine the Senate’s purported character as a collegial and debate-friendly body, making it more like the rough-and-tumble House of Representatives.

No. It would be an expansion of a precedent set by Democrats in 2013, when they had a Senate majority and used the nuclear option to eliminate some other types of filibusters. Both parties have been engaged in a tit-for-tat escalation of partisan warfare over judgeships for a generation, from the Senate’s defeat of President Ronald Reagan’s nomination of Judge Robert Bork to the Supreme Court in 1987 through its refusal to take up President Barack Obama’s nomination of Judge Merrick B. Garland last year.

As part of that story, back in 2013, Senate Republicans were obstructing Mr. Obama’s nominees to executive branch positions and lower-court judgeships. Under Harry Reid of Nevada, the majority leader, Democrats used a simple majority vote to change the rules, abolishing the need to muster 60 votes to proceed to an up-or-down vote on such nominations. But they left the filibuster rule intact for Supreme Court nominations and for legislation.

Notably, Senate Republicans are not threatening to eliminate the ability of 41 senators to block new laws, although adherents of Senate tradition fear that each erosion of the rule makes that prospect more likely.

Are filibusters part of the Constitution?

No, they are only an artifact of Senate rules. Originally, the chamber had a tradition that members could stay on the floor and talk as long as they wanted. But in 1917, amid acrimonious arguments over whether the United States should take part in World War I, it created the cloture rule to provide a mechanism for a supermajority of 67 senators to cut off debate and proceed to a final vote. In 1975, the Senate reduced the supermajority requirement to 60 votes.

Do senators have to keep talking in order to filibuster?

No. That’s called a talking filibuster, and it is the image created by the 1939 Frank Capra movie “Mr. Smith Goes to Washington,” in which an idealistic senator played by Jimmy Stewart holds the floor to prevent a corrupt bill until he collapses.

Filibusters took on less saintly overtones during the civil rights era, when Southern Democrats used them to block civil rights legislation, including an anti-lynching bill. The record for the longest such filibuster speech is held by Senator Strom Thurmond of South Carolina, who was then a Democrat but later became a Republican. He held the floor for 24 hours and 18 minutes to delay and protest the enactment of the Civil Rights Act of 1957, the first voting rights bill to become law since the post-Civil War Reconstruction era.

Talking filibusters have essentially been obsolete since the early 1970s, when the Senate changed its rules to permit more than one bill or matter to be pending on the floor simultaneously. That has permitted the Senate to move on to other business while theoretical “debate” on the blocked item continues indefinitely, although occasionally a senator holds a lengthy talking filibuster anyway to attract attention to an issue.

Senate Dems reach filibuster threshold on Gorsuch setting up 'nuclear option' change

Four Senate Democrats announced Monday they plan to oppose Neil Gorsuch, bringing the Democratic caucus to the 41 votes needed to sustain a filibuster against the Supreme Court nominee.

The announcement sets Republicans up to change Senate rules -- referred to as the "nuclear option" -- to lowering the threshold of advancing Supreme Court nominees to just 51 votes from 60.

The Senate Judiciary Committee voted 11-9 along party lines to move Gorsuch's nomination to the full Senate.

With Sens. Chris Coons of Delaware, Dianne Feinstein of California, Mark Warner of Virginia and Patrick Leahy of Vermont all saying Monday they could not support Gorsuch, Democrats reached the votes they needed to prevent the advancement of Gorsuch's nomination under current chamber rules.

Republicans, who hold a 52-48 majority, needed a total of 60 votes to end the filibuster. As of Monday afternoon, they had 56 votes, including four Democrats who are voting with them.

Two senators remain undecided. However, even if both were to side with Republicans, it wouldn't be enough to avoid the filibuster.

The majority party can still get around the filibuster by changing Senate rules and using the controversial "nuclear option" to lower the threshold needed to end debate. Democrats, in the face of strong Republican opposition, did the same in 2013 to confirm lower court nominees.

Now Republicans, citing 2013 as a precedent, feel that it's their only choice. But it would permanently nix the filibuster for Supreme Court nominees, essentially giving the party in power all the leverage and eliminating the Senate's tradition of needing at least some bipartisanship to advance such nominees.

Senate Majority Leader Mitch McConnell, should he proceed to the nuclear option, needs only a simple majority of 51 to vote for a change in the rules. It's possible McConnell will have his whole party -- 52 votes -- behind him, but not all Republicans have explicitly said they will back him in the effort.

He can only afford to lose two Republican senators, in which case Vice President Mike Pence would be needed to break a tie. If McConnell loses more than three Republicans, the rule change would not pass.

Pressed by reporters on whether he will vote for the use of the nuclear option, Judiciary Chairman Chuck Grassley refused to explicitly say yes. But he insisted that he is "going to do whatever it takes" to get Gorsuch on the Supreme Court.

Coons, who was the 41st senator to say he plans to take part in the filibuster, told CNN's Wolf Blitzer immediately after his announcement that he understood the consequences of his decision, but also reiterated his pledge that he's open to negotiating with Republicans to find an agreement on avoiding the nuclear option on the next nominee.

"I said, 'I will vote against closure unless the Republicans and Democrats in the Senate can somehow find an agreement that is trustworthy and reliable, where on the next Supreme Court nominee, they won't change the rules and we will have input and a more confirmable, consensus nominee will be put in front of the Senate,'" Coons said. "I'm not saying that I'm insisting that we force the Republican majority to break the rules. That's a choice they're going to have to make."

Warner, the Democrat from Virginia, expressed some semblance hope for a deal.

"I know there are some people still talking so I'll try to keep a little bit of optimism for a couple of more days," he told Blitzer on "The Situation Room."
Sen. Lindsay Graham tried to send some warning shots to Democrats, saying the filibuster will cause Republicans to change the rules in an "unnecessary" move that will "haunt" the Senate for decades.

"To my Democratic colleagues, yeah this is going to be very bad. Let me tell you what's going to happen. The judges are going to become ideological because you don't have to reach across the aisle to get one vote any longer," he told reporters after the hearing. "And every Senate seat is going to become a referendum on the Supreme Court. A lot of us have a tradition of not playing colleagues -- in races involving our colleagues. But now you're telling the country every Senate seat matters. If you want to have a judge in the court, you'd better have a majority. So this is going to haunt the Senate, going to change the judiciary and it's so unnecessary."
The White House is "disappointed" that Democrats will have enough votes to sustain a filibuster against President Donald Trump's Supreme Court nominee Neil Gorsuch, press secretary Sean Spicer told reporters following the filibuster news.

"If the Democrats get their way, and the numbers are looking that way, this is going to be the first successful filibuster of a nominee to join the Supreme Court, which is clearly unprecedented," Spicer said, adding, "With a vote on Judge Gorsuch on Friday, the American people see which senators are willing to keep this seat open to get in the way of President Trump making progress on one of his most significant choices so far."

Knowing full well that the filibuster would likely lead to Republicans using the "nuclear option," Leahy shared his struggle over his decision but ultimately said he "cannot vote solely to protect an institution," adding that he considers Americans' rights at risk with Gorsuch's nomination.

"I've often said the Senate at its best can and should be the conscience of the nation, but I must first and foremost vote my conscience," Leahy said. "I will not and can not support advancing this nomination."

Judiciary committee vote
Before voting, senators engaged in an at-times testy debate over not only Gorsuch, but Republican action to block President Barack Obama's Supreme Court nominee, Merrick Garland, last year.

"This action by my colleagues was unacceptable and has scarred this process and this body," Coons said in the hearing. "There has never been a partisan filibuster of a Supreme Court nominee in history; and while technically correct, I question what a seven-month refusal to hold a hearing or vote is -- if not the longest partisan filibuster on this committee ever."

Republicans argued that Democrats would essentially oppose any Trump nominee.

"If (Democrats) are going to oppose Neil Gorsuch to the Supreme Court of the United States, they will never vote and never support a nominee of this President. Because in the end, I think that's really what gets their goat the most," said Sen. John Cornyn of Texas. "We keep hearing about Merrick Garland, but I guarantee if Hillary Clinton had the presidency, we'd never hear Merrick Garland's name again because she would have had the opportunity to pick her own nominee to the Supreme Court."

Spending from outside groups has also been a hotly contested debate in Gorsuch's nomination. Democrats have criticized Gorsuch for not speaking out against third-party groups, with undisclosed donors, who have spent millions in support of his nomination.

The debate continued during the hearing Monday.

"This nomination is not the usual nomination. It comes in a different way and it has proceeded in a way of excessive spending of dark money that in the time I have been on this committee I have never seen before," said Feinstein, the top Democrat on the committee.

Undeclared Democrats
Sen. Bob Menendez (New Jersey) -- Menendez also hasn't announced a 2018 run but he has reportedly started raising campaign funds. Like Feinstein and Cardin, he's considered safe if he decides to run. The New Jersey senator told reporters that he's still deciding on Gorsuch, but "when I come to a conclusion on how I'm voting on Gorsuch, I'll decide on how I'm voting in the whole process."

Independent Sen. Angus King (Maine) -- While King is an independent, he's considered part of the Democratic caucus. He's been fairly quiet about Gorsuch of late. His seat is also considered safe in 2018.

Democrats who will vote for Gorsuch and against filibuster
Sen. Joe Manchin (West Virginia)
Sen. Heidi Heitkamp (North Dakota)
Sen. Joe Donnelly (Indiana)

Democrats who will vote against filibuster
Sen. Michael Bennet (Colorado)

Democrats who plan to filibuster
1. Senate Minority Leader Chuck Schumer (New York)
2. Independent Sen. Bernie Sanders (Vermont)
3. Sen. Bob Casey (Pennsylvania)
4. Sen. Ron Wyden (Oregon)
5. Sen. Patty Murray (Washington)
6. Sen. Elizabeth Warren (Massachusetts)
7. Sen. Jeff Merkley (Oregon)
8. Sen. Tom Carper (Delaware)
9. Sen. Tammy Baldwin (Wisconsin)
10. Sen. Bill Nelson (Florida)
11. Sen. Cory Booker (New Jersey)
12. Sen. Mazie Hirono (Hawaii
13. Sen. Tom Udall (New Mexico
14. Sen. Jack Reed (Rhode Island)
15. Sen. Chris Murphy (Connecticut)
16. Sen. Sheldon Whitehouse (Rhode Island)
17. Sen. Tim Kaine (Virginia)
18. Sen. Kamala Harris (California)
19. Sen. Al Franken (Minnesota)
20. Sen. Debbie Stabenow (Michigan)
21. Sen. Ed Markey (Massachusetts)
22. Sen. Chris Van Hollen (Maryland)
23. Senate Minority Whip Dick Durbin (Illinois)
24. Sen. Jeanne Shaheen (New Hampshire)
25. Sen. Gary Peters (Michigan)
26. Sen. Maggie Hassan (New Hampshire)
27. Sen. Amy Klobuchar (Minnesota)
28. Sen. Martin Heinrich (New Mexico)
29. Sen. Tammy Duckworth (Illinois)
30. Sen. Kirsten Gillibrand (New York)
31. Sen. Richard Blumenthal (Connecticut)
32. Sen. Maria Cantwell (Washington)
33. Sen. Brian Schatz (Hawaii)
34. Sen. Catherine Cortez Masto (Nevada)
35. Sen. Claire McCaskill (Missouri)
36. Sen. Sherrod Brown (Ohio)
37. Sen. Jon Tester (Montana)
38. Sen. Dianne Feinstein (California)
39. Sen. Patrick Leahy (Vermont)
40. Sen. Mark Warner (Virginia)
41. Sen. Chris Coons (Delaware)
42. Sen. Ben Cardin (Maryland)

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