Why Are Democrats Holding Back on Gorsuch?

The current Supreme Court vacancy, and who replaces the late Antonin Scalia, may matter more to Republican voters.

Protestors gather outside of the Supreme Court after President Donald Trump announced that he intends to nominate Neil Gorsuch to the Supreme Court.  (Drew Angerer / Getty Images)

The Senate kicks off its formal vetting process of President Trump’s Supreme Court pick in public view on Monday with a Senate Judiciary Committee hearing on the nomination of conservative judge Neil Gorsuch to the high court. That will mark a departure from the treatment that Merrick Garland, former President Obama’s nominee to fill the same Supreme Court seat, faced in Congress last year when Senate Republicans broke with tradition by refusing to hold even a single hearing to consider the nomination.

Even if Democrats wanted to, the party can’t mount the same kind of all-out opposition to Trump’s Supreme Court nominee. The most glaring reason is that Democrats don’t control the Senate, and Republicans have the power to set the hearing agenda. Still, Democrats could be putting up more of a fight than they have so far, and have faced criticism from left-leaning advocacy groups as a result.

But part of the reason Democrats haven’t taken a hard-line approach on par with how Republicans treated Obama’s nominee may be because public opinion surveys suggest liberal voters are less concerned than conservatives about the current Supreme Court vacancy, and who gets to replace the late conservative Justice Antonin Scalia.

To start, the appointment of a liberal justice to replace Scalia would have fundamentally shifted the balance of the court in a liberal direction. As a result, Republicans may have felt they had more to lose if Garland had been confirmed than Democratic voters do now if Gorsuch is confirmed, an outcome that would effectively maintain the ideological status quo ante on the court.

“I think a lot of the current political dynamic has to do with the composition of the court,” said Martha Ginn, a political science professor at Augusta University, who studies public opinion of the judiciary. “If it had been [liberal Justice Ruth Bader] Ginsburg who had died, that might have provoked stronger opposition from Democratic voters to the potential confirmation of a conservative judge than what you’re seeing now.”

Polling data indicates that conservative voters are more dissatisfied with the Supreme Court than liberals, which may contribute to a heightened sense among Republicans that the current appointment is worth fighting over. A Pew Research Center survey from 2015 found that 62 percent of Democrats viewed the court favorably, while only 33 percent of Republicans felt the same. By 2016, Republicans’ views of the court had improved, but Democrats still viewed the court significantly more favorably, with only 57 percent of Republicans reporting a favorable opinion of the court compared to 73 percent of Democrats.

The Supreme Court, which has a conservative majority, hasn’t actually become more ideologically liberal in its decision-making in recent years. Still, voters may be more attuned to the fact that some of the most high-profile cases in recent memory, including the court’s decision to legalize same-sex marriage, and uphold the Affordable Care Act, have delivered political victories to Democrats, according to John Kastellec, a political science professor at Princeton who focuses on judicial politics. “There is perhaps a discrepancy between the overall ideology of the court, and the public opinion of the court among conservatives,” Kastellec said in an interview. “Some of the most salient decisions in recent years have come out on the liberal side, and have tended to be viewed favorably by liberals and less favorably by conservatives.”

That’s not to say that liberal voters don’t care about the Supreme Court. An overwhelming majority of Democrats and Republicans, at 92 percent and 90 percent respectively, believe that “decisions made by the U.S. Supreme Court have an impact on my everyday life as a citizen,” according a C-SPAN poll released on Friday.

There are plenty of Democrats who don’t want Gorsuch confirmed. It’s just that in the end, liberals may care slightly less about this particular Supreme Court appointment than conservatives. Pew data indicates that although a full 50 percent of Democrats believe Gorsuch shouldn’t be confirmed, an even higher percentage of Republicans, at 55 percent, didn’t want Garland to be confirmed. Similarly, while a majority of Democrats, at 67 percent, supported Garland’s nomination, a higher percentage of Republicans, 78 percent, support Gorsuch.

There are also indications that the Supreme Court appointment was a more decisive issue for Trump voters than Clinton voters. Seventy-five percent of Trump voters told pollsters that Supreme Court appointments were either the most important factor or an important factor in how they decided to vote, compared to 68 percent of Clinton voters, according to NBC News.

Further complicating any efforts by Democrats to oppose Trump’s Supreme Court pick, if the party attempts to hold up the Gorsuch nomination using the filibuster, which would require a 60-vote threshold for confirmation, Republicans may invoke the so-called “nuclear option,” eliminating a procedural tactic that the minority party might want to preserve. A number of Senate Democrats are also up for reelection in 2018 in states that Trump won, including Senators Joe Manchin of West Virginia, and Claire McCaskill in Missouri, and  may face more pressure not to take a hard-line against Gorsuch as a result.

Some Senate Democrats have made their opposition to the pending appointment clear, including Elizabeth Warren, who has suggested that Gorsuch is in the pocket of corporate interests. But others appear to be taking a more cautious, wait-and-see approach. “To be talking about whether I’m for or against at this stage makes no sense at all to me because it’s uninformed,” Senator Dianne Feinstein, the top Democrat on the Senate Judiciary Committee, told Politico last week.

Senate Minority Leader Chuck Schumer has been working to make a case that Gorsuch’s judicial record has adversely affected Americans, and has suggested that it won’t be easy for Republicans to confirm the nomination. But Schumer has still indicated that every Senator will have to decide for him or herself how to vote.

Liberal advocacy groups have expressed disappointment in the collective Democratic response to the nomination. “We need you to do better,” a group of liberal organizations, including MoveOn.org and the Working Families Party, wrote in a letter to Democratic Senators earlier this month, arguing that congressional Democrats had “failed to demonstrate a strong, unified resistance to this nominee” and urging “Democratic senators to immediately make clear your opposition.”

Another challenge for liberal activists who want Senate Democrats to oppose the nomination is that the Supreme Court fight has so far flown relatively under the radar in the midst of congressional battles over the Affordable Care Act, and protest from activists to the Trump administration’s early moves in office.

“Senate Democrats have a responsibility to watch what both of Trump’s hands are doing,” Ben Wikler of MoveOn.org, said in an interview. “Even if there’s protests about the ACA [Affordable Care Act] next week that are louder than the protests about Gorsuch, they should remember that their votes on Gorsuch will be remembered by grassroots progressives for the rest of their political careers.”

Once the confirmation hearing gets underway, Senate Democrats will have a new platform to question, and mount opposition to, the potential high court appointment. But the amount of pressure the party feels from advocacy groups, and its base, may determine whether, and to what extent, Democrats intensify their attacks on the nomination. And if elected officials believe their core constituents are relatively apathetic about the nomination, Democrats may decide it’s not worth putting up much of a fight.