Some Democratic senators initially considered making only a half-hearted effort to defeat Gorsuch, hoping to preserve the filibuster option for a future high-court vacancy that would actually shift the ideological balance on the bench. (Replacing Scalia with another conservative maintains the status quo.) Yet progressives ridiculed that idea. Republicans, they argued, would not hesitate to nuke the 60-vote threshold for any Trump nominee, so Democrats might as well force them to do it with Gorsuch. “McConnell will go nuclear at the first opportunity. There’s just no question,” said Adam Jentleson, a former top aide to Reid who is now a senior strategist at the Center for American Progress.
Minority Leader Charles Schumer adopted that view in recent weeks, and so have most of his colleagues. Thirty of the party’s 48 members now support a filibuster against Gorsuch, including more moderate members like Senator Bill Nelson of Florida, who is up for reelection next year. McConnell has said the Senate will confirm Gorsuch by the end of next week, ahead of a two-week congressional recess. The Democratic arguments against Gorsuch have run the gamut. Many senators have gamely stuck to the view that he is simply too conservative a pick, citing his record as a jurist and as a political appointee in Republican administrations.
Several members of the Judiciary Committee took issue with his performance at his hearings last week, which they found evasive and condescending, if not overly controversial. And others have called for the vote to be put off until the investigations of the Trump campaign’s ties to Russia have been completed, warning that a president whose legitimacy might be tainted should not get a lifetime appointment to the nation’s highest court.
But mostly, the gathering Democratic opposition to Gorsuch is a reflection of the coarse political moment, as senators face pressure from an angry party base seething over the Republicans’ treatment of the martyred Garland and the likelihood that a president elected under a cloud of suspicion and without popular support will be able to secure a conservative majority on the Supreme Court for decades more to come.
Their goal over the next weeks is to force even a few Republicans to think twice about Gorsuch and the precedent of confirming a nominee without bipartisan support. “The answer is not to change the rules. It’s to change the nominee,” Schumer said Wednesday. “We believe there are Republicans who are reluctant to change the rules, and we hope they won’t do it.”
While a few GOP senators, including John McCain of Arizona and Bob Corker of Tennessee, have voiced reservations about invoking the nuclear option to confirm Gorsuch, none have come out against it. “Feel no guilt,” McConnell told his members about the prospect, according to Politico. If Republicans appear to have the will to confirm Gorsuch by any means necessary, Democrats can at least try to take the sheen off Trump’s victory by painting it as another move flouting institutional norms. “It’s an ugly vote,” Jentleson said.
But as polarization and partisanship have steadily overtaken the confirmation process, neither party is innocent. Democrats may have tried to preserve the filibuster for the Supreme Court four years ago, but they knew it probably wouldn’t last. They started the slide toward majority rule for nominees, and next week, they’ll likely make Republicans finish it.