There is less than one week to go before Neil Gorsuch’s confirmation hearings begin and the political landscape continues to reflect the tension between the need to fill Scalia’s long-vacant seat and the conflicting demands placed on the Senators themselves, from both the party and their voters. Previously, we discussed that the Republicans would need to sway either 8 Democrats to reach the 60-vote threshold to invoke cloture and terminate the filibuster; or otherwise detonate the “nuclear option” to end the filibuster altogether for Supreme Court nominees. Depending on which source you reference, Gorsuch’s nomination is either a lock, or is set for a bitter fight that only the nuclear option will resolve.
The loudest objectors to Gorsuch’s nomination are various liberal groups, the most notable of which is The People’s Defense, a coalition including such heavyweights as Lambda Legal, SEIU, and NARAL to name a few. These groups have brought their considerable reach and influence to bear in order to spread information on positions of Gorsuch’s they find objectionable, and to pressure Democratic Senators to toe the line when it comes time to vote. Other liberal groups have even threatened Senators who vote for Gorsuch’s confirmation with primary challenges in the 2018 election season to install “true progressives” in office instead. On the other hand, for the Democratic Senators facing reelection in Republican-leaning states it may truly be a no-win situation as their Republican constituents have been demanding a vote for confirmation.
The level of activity from these various organizations provides an interesting contrast to the Senators themselves. Overall, the Senate Democrats have presented little public backlash other than Minority Leader Chuck Schumer stating back in February that 60 votes will be required for confirmation, shortly after Gorsuch’s nomination was announced. These groups are, probably rightfully, concerned that the Senators are not as committed to obstructing or even publicly scrutinizing this nomination. On March 14th, Politico quoted Senate Minority Whip Dick Durbin as saying “The only thing we’ve decided as a caucus is to ask members not to make any public commitments until the hearing phase is finished” which seems to indicate that the nuclear option is becoming a less credible threat as confirmation approaches.
This lukewarm response could be a combination of “Trump fatigue” from battling various other nominations/actions and the fact that, other than ideological differences, Gorsuch has not proven to be a very controversial candidate. The American Bar Association’s Standing Committee delivered a “well qualified” rating, the highest available, along with a written statement to the Senate Judiciary Committee. Any attacks on Gorsuch’s qualifications themselves would be ultimately fruitless in light of his credentials and record on the Tenth Circuit. Even focusing on the ideological differences only leaves the Democrats with a relatively thin, though controversial, stable of issues such as the Chevron doctrine, abortion and euthanasia.
Overall, the greatest controversy surrounding Gorsuch since his nomination were his reported remarks criticizing President Trump’s tweets against the federal judiciary as “disheartening” and “demoralizing.” If anything, this controversy should have been reassuring to those worried he would be too deferential to the President. Strategically speaking, some Democrats may see this nomination as one worth conceding in order to save the filibuster’s leverage for the next opening and its potentially more unpalatable nominee. A filibuster for Gorsuch is certainly not out of the question but with the Democrats failing to put up a unified front this close to the hearings it appears that earlier efforts to woo some of the more moderate and/or vulnerable Senators may have paid off for the Republicans. Senate Majority Leader Mitch McConnell is confident Gorsuch will be confirmed before the April recess – and that is beginning to seem increasingly possible.