WASHINGTON ― Democrats know they don’t have the votes to stop Supreme Court nominee Neil Gorsuch from clearing his Senate confirmation hearing, which begins Monday. But they don’t appear to have a strategy, or even the energy, for a coordinated fight against President Donald Trump’s conservative court pick.
Chalk it up to Trump’s chaotic administration, or to Senate Minority Leader Chuck Schumer’s low-key approach. Democrats just haven’t treated Gorsuch’s nomination as the kind of high-profile ideological battle that Supreme Court choices traditionally bring about. Even in the days leading up the hearing, it’s felt more like an afterthought on Capitol Hill.
“I hope the questions are good,” Sen. Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, told The Huffington Post on Wednesday when asked about her thoughts heading into the hearing. Asked if there are any particular issues she plans to press Gorsuch on, she replied, “Not right now.”
Progressive advocacy groups have been demanding a real fight against Gorsuch, who, as an appellate judge on the U.S. Court of Appeals for the 10th Circuit, built a record of opposing reproductive rights, LGBTQ rights, civil rights, workers’ rights, immigrants’ rights and environmental protections.
Led by NARAL Pro-Choice America, 11 organizations sent a letter to Senate Democrats this month torching them for having “failed to demonstrate a strong, unified resistance to this nominee, despite the fact that he is an ultra-conservative jurist who will undermine our basic freedoms…. We need you to do better.”
Democrats on the committee certainly plan to ask tough questions of Gorsuch. They’re just all over the place.
“We can use these hearings to put the spotlight on big special interests,” said Sen. Sheldon Whitehouse (D-R.I.). “The test for Gorsuch is: is he willing to dissociate himself from them? In my view, the burden is on him to persuade us of that fact, particularly given that big special interests are spending tens of millions in dark money to try to help him get on the court.”
Sen. Richard Blumenthal (D-Conn.) said he plans to pack in as many questions as possible, on as many topics as possible, because Gorsuch hasn’t given him clear answers on things he’s asked him about.
“Workers protections. Consumer rights. Women’s health care. Privacy rights. The independence of the judiciary,” said Blumenthal, who made news last month when revealing that Gorsuch told him in private that he found Trump’s attacks on judges who ruled against his travel ban “demoralizing.” In the wake of those comments, and pushback by the White House, Schumer wrote in a New York Times op-ed that the episode “only raises concerns about his independence.”
“I will be pressing him and aggressively questioning him on all of these issues because he has an obligation to come clean with the American people before he assumes a lifetime appointment on the nation’s highest court,” Blumenthal said.
“There’s so many issues, I don’t know where to start,” added Sen. Dick Durbin (D-Ill.). “A contemporary issue is the relationship between the executive and the judiciary. I think that’s going to be tested time and again by this president.”
But some advocates aren’t sure Democrats have it in them to put Gorsuch on the defensive. And Gorsuch has been preparing judiciously to meet whatever curveballs the Senate Judiciary Committee may throw his way.
“I don’t think the Democrats are going to get him to say things that are wildly objectionable,” said Drew Courtney, a spokesman for People for the American Way, an organization that has long been involved in Supreme Court nomination fights. Courtney said senators would be best served by focusing on his record.
In an attempt to crystallize their strategy, Democrats this past week unveiled something of an offensive on Capitol Hill, appearing alongside sympathetic plaintiffs who have been on the receiving end of a Gorsuch opinion. The goal, in Schumer’s words, is to paint this judge as someone who “sided with the powerful against the powerless.”
But not everyone is convinced that the “little guy” approach is the right tack to use against Gorsuch. Some say it’s relatively easy to rebut that argument: One of the judge’s more popular opinions ― on immigration, a topic that’s central to Trump’s agenda ― found favor with an undocumented immigrant from Mexico. The decision effectively prevented the man’s deportation.
“I don’t think [Gorsuch] is going to do everything President Trump thinks he will do in his favor,” said Timothy Cook, the Oklahoma lawyer who represented the immigrant in that case. He added that he thinks Gorsuch would be a good Supreme Court justice.
Progressive senators, like Elizabeth Warren (D-Mass.) and Jeff Merkley (D-Ore.), have already said they’ll oppose Gorsuch’s confirmation in the full Senate. But many are waiting to see how he handles himself in the hearing before deciding how they’ll vote, though they’re skeptical.
Gorsuch clearly has a conservative record on the bench ― some commentators have observed he is even more conservative than the late Justice Antonin Scalia, who he’d be replacing on the Supreme Court. He was among those on a list of judges Trump announced during the campaign that was assembled with the help of The Federalist Society and The Heritage Foundation, two prominent conservative groups.
“He has a very high bar to clear, both in proving that he can be an independent check on the executive and that he will give less powerful plaintiffs a fair shake before the Supreme Court,” said a Senate Democratic leadership aide. “Democrats are going to push him hard to answer direct questions on both of those topics.”
“If his answers are anything like they’ve been in private meetings, he isn’t going to win anyone over,” added the aide.
“We need you to do better."”
Gorsuch will need some Democratic support, which he did get in 2006 when he was unanimously confirmed to the 10th Circuit. It takes 60 votes to advance his nomination in the Senate, and there are only 52 Republicans. If Republicans can’t hit 60, it’s possible that Senate Majority Leader Mitch McConnell (R-Ky.) will eliminate that so-called filibuster rule altogether. If that happens, Gorsuch would only need 51 votes to be confirmed. Democrats, for now, are relying on that rule for leverage.
“I will use every tool available, including the filibuster, to oppose him,” Blumenthal said this week. “We will use every tool at our disposal.”
Out of tradition, one Democrat, Sen. Michael Bennet (Colo.), will introduce Gorsuch on Monday alongside fellow Colorado Sen. Cory Gardner (R), according to Politico. At least one other senator up for re-election in 2018, Joe Manchin (D-W.Va.), has said he’s open to voting for Gorsuch.
That’s not acceptable to some of their progressive allies. In a call with reporters earlier this month, some groups warned that Senate Democrats will pay a price if they help Gorsuch get confirmed.
“We want the Democrats to act as the opposition party, not as the minority party,” said Murshed Zaheed, political director of Credo Action. Those who support him “will permanently damage his or her political career.”