Democrats are decided on one thing when it comes to the confirmation of Neil Gorsuch, President Trump’s Supreme Court nominee: they are undecided.
While some Democratic senators are in favor of an all-out opposition to Gorsuch’s confirmation, other senators have been more tentative, in particular because some are up for re-election in states that swung towards Trump in November.
North Dakota senator Heidi Heitkamp told Politico last week that Democrats “should be open to supporting any nominee.”
Heitkamp is up for re-election in 2018 and North Dakota voted heavily for Trump in November. When asked whether she was facing pressure from liberals and progressive groups to oppose Gorsuch, Heitkamp issued a sharp rebuke: “I get pressure from the left all the time. I wasn’t sent here to respond to pressure.”
West Virginia senator Joe Manchin has also urged Democrats to consider Gorsuch. Manchin is up for re-election in 2018 as well and West Virginia voted heavily for Trump
“You need nine members. It doesn’t work with eight,” Manchin told Politico. “I understand the Democrats being so upset. I understand it. … That doesn’t make it right to go along with eight. If you think [Republicans] are going to give you a center-left [judge], they’re not! Come to grips with it.”
Manchin said that he is “truly and totally concerned” that, if Democrats mount a filibuster during Gorsuch’s confirmation process, Republicans will change Senate rules and eliminate the filibuster, a move known as the “nuclear option.” Eliminating the filibuster would allow the Senate to proceed on a floor vote.
Manchin previously voted against Democrats’ move to eliminate the filibuster for executive branch and judicial appointments outside the Supreme Court in 2013.
Republicans currently control the Senate with 52 seats, and a simple majority of 51 would be needed to confirm Gorsuch during a floor vote.
Other senate Democrats have been more openly skeptical.
Connecticut senator Richard Blumenthal, who sits on the Senate Judiciary Committee, has criticized Gorsuch for his stance on workers’ rights, consumer protection, women’s healthcare, privacy, and other issues that he believed were cause to worry about Gorsuch’s judicial philosophy. He also expressed concern about the fact that conservative groups like the Heritage Foundation and the Federalist Society lobbied Trump to nominate Gorsuch.
Blumenthal said on CNN Monday that the Democrats would use every tool at their disposal to prevent Gorsuch from filling the late Justice Scalia’s seat. Blumenthal is not up for re-election until 2022 and serves in traditionally-blue Connecticut.
Senate Minority Leader Chuck Schumer has expressed similar opposition to Gorsuch, tweeting last week that “Judge Gorsuch’s decisions had negative real-life implications for working Americans.”
Shortly after Gorsuch’s confirmation hearing began, the New York senator tweeted, “It is not only acceptable to ask a SCOTUS nominee questions & expect specific answers; it is necessary. Time for Judge Gorsuch to do so.” He followed the tweet with a number of statements from constituents who were sharply critical of the judge’s views.
Schumer has also questioned Gorsuch’s judicial independence, writing in a New York Times op-ed, “A truly independent judge would have the fortitude to condemn the president’s remarks, not just express disapproval, and to do it publicly.”
“The White House’s assertion that Judge Gorsuch’s private remarks were not aimed at Mr. Trump only raises concerns about his independence,” Schumer continued.
Some Senate Democrats have advocated against a strong opposition to Gorsuch because, they say, his appointment would not drastically alter the ideological balance of the bench. They have argued that Democrats would be better served by mounting their opposition when another vacancy opens up and arguing that Republicans are using partisanship to influence the high court for the next generation.
“I think every nominee is important, but I know that many of my colleagues are thinking about” that dynamic, New Jersey senator Robert Menendez, told Politico.
“When is it that they fall on the sword? Is it on this one or the next one? And I’m not coming at it from that approach,” he said.
Progressive groups have rallied behind Schumer and Blumenthal, putting pressure on senators who have demonstrated less willingness to oppose Gorsuch’s nomination outright.
“Our message to Senate Democrats is clear: everything from Roe v. Wade to LGBTQ rights to workers’ rights are on the line,” Ilyse Hogue, president of NARAL Pro-Choice America, said in a statement released Monday. “A simple ‘no’ vote is not enough. Our members are counting on Democrats to filibuster this nomination.”
NARAL joined 10 other progressive and grassroots groups in a letter to Senate Democrats, urging them to resist Gorsuch’s nomination to the best of their ability. The letter contended that Gorsuch has a record of anti-women, anti-LGBTQ, and anti-workers decisions andthat Democrats “must get out in front of this nomination process and refuse to be bullied by President Trump as he stampedes on the rights of Americans.”
“Make clear your opposition to this nominee and insist that Gorsuch’s nomination, like previous nominees to the Supreme Court, will require 60 votes,” the letter reads.