But Democrats also appeared to clinch the 41 votes needed to block Friday’s scheduled confirmation vote after Sen. Chris Coons (D-Del.) announced during the hearing that he would join the party’s planned filibuster of the nominee.
Committee ranking member Dianne Feinstein (D-Calif.) and Sen. Patrick Leahy (Vt.), the No. 2 Democrat on the panel, also said during the hearing that they would prevent Gorsuch from proceeding to a confirmation vote in the Senate. Three other Democrats — Mark Warner (Va.), Tom Udall (N.M.) and Ben Cardin (Md.) — announced separately on Monday that they would join the filibuster.
“Unfortunately, based on Judge Gorsuch’s record at the Department of Justice, his tenure on the bench, his appearance before the Senate, and his written questions for the record, I cannot support this nomination,” Feinstein said.
Leahy said the judge’s testimony before the committee was “excruciatingly evasive” and “patronizing” — particularly with respect to historic cases.
“Is there anybody on this committee or elsewhere who would disagree with Brown v. Board of Education?” Leahy asked, adding that he could not “recall a nominee refusing to answer such basic questions about the principles underlying our Constitution.” He noted that he was planning to vote his “conscience” in joining the opposition to Gorsuch.
Senate Majority Leader Mitch McConnell (R-Ky.) has sent strong signals that, if Democrats’ blockade succeeds, he’ll deploy the so-called “nuclear option” ― a rule change that would allow a simple majority of Republicans to vote Gorsuch onto the Supreme Court bench.
During his turn to speak Monday, Sen. Lindsey Graham (R-S.C.) said “we’ll change the rules if we have to” to get the judge confirmed, but warned that going that route will result in more ideological nominees in the future.
“The Senate traditions are going to change over this man, based on the times in which we live,” Graham said. “And I find it ironic and sad that we’re going to change the rules over somebody who’s lived such a good life, who’s been such a good judge for such a long time. It says more about the Senate than it does Judge Gorsuch.”
We'll change the rules if we have to. Sen. Lindsey Graham (R-S.C.)
McConnell has vowed Gorsuch will be confirmed by this Friday. But Senate Minority Leader Chuck Schumer (D-N.Y.) has indicated the nuclear option shouldn’t be Republicans’ response.
“You shouldn’t change the rules. You should change the nominee,” Schumer told reporters last week on Capitol Hill. “If they decide to change the rules, it will be on their back.”
The Senate Judiciary Committee’s 11 Republicans and nine Democrats last month took turns praising and grilling the respected Colorado judge, who has served in the U.S. Court of Appeals for the 10th Circuit for a decade and was on a shortlist of judges that Trump touted during the campaign as potential nominees to drum up support for his White House bid.
Senate Democrats have pointed to this list of handpicked judges — assembled with the help of conservative groups The Federalist Society and The Heritage Foundation — and the millions of dollars being spent on pro-Gorsuch ads as evidence the judge is a surefire vote for Republican causes in ideologically close cases. Before selecting Gorsuch, Trump promised his supporters he’d appoint a Supreme Court justice who would be “pro-life” on the issue of abortion.
Gorsuch tried to distance himself from Trump and these campaign promises during his confirmation hearings, asserting that he’d rule independently and that he would have “walked out that door” if Trump had asked him to vote to overrule Roe v. Wade, the 1973 landmark decision that established a woman’s constitutional right to end her pregnancy.
Still, Gorsuch’s apparent evasiveness and his steely answers on settled questions of constitutional law didn’t assuage key Democrats coming out of the hearings. Feinstein noted during a follow-up committee meeting last week that her party, given the questions still surrounding the nomination, was “in a terrible position” to support the judge.
Explaining his “no” vote on Gorsuch on Monday, Sen. Richard Blumenthal (D-Conn.), himself a former Supreme Court clerk, said it’s “far from idle speculation” that the nominee could be decisive if the court were ever called to enforce a subpoena against the Trump administration — much like the justices did more than 40 years ago when a special prosecutor sought the Watergate tapes from President Richard Nixon.
“The independence of our judicial branch has never been more threatened or more important,” Blumenthal said.
This article has been updated with details from Monday’s hearing and how senators plan to vote in the full Senate.