Federal Courts and Nominations

Chuck Schumer pivots and sets up a game of chicken on Neil Gorsuch

By Ariane de Vogue

Senator Minority Leader Chuck Schumer came out swinging, vowing to vote against the judge, hours after Neil Gorsuch wrapped up his marathon testimony before the Senate Judiciary Committee.

“My vote will be ‘No'” the New York Democrat said, and in doing so, pivoted from the heady constitutional issues discussed over the last two days to the harsh reality of a whip count in Congress.

Schumer signaled a battle royale.

Gorsuch cruised through much of his testimony — parrying with Democratic senators but steering clear of showing his hand on hot-button issues. At the end of the hearing, for nearly an hour, Gorsuch and his wife, mingled with former clerks and supporters in the well of the hearing room.

Democrats left frustrated.

“You have been very much able to avoid any specificity like no one I have ever seen before,” ranking member Diane Feinstein said at one point. “That’s a virtue, I don’t know — but for us on this side, knowing where you stand on major questions of the day is really important to a vote aye. And so that’s why we press and press and press.”

But now it’s time for the vote. As things stand, Gorsuch will need 60 votes for confirmation, and Schumer believes he won’t get them. It could come down to a game of chicken.

In his floor speech, Schumer urged his colleagues to vote no and suggested that Gorsuch revealed less than Chief Justice John Roberts did during his own confirmation hearings. It was Roberts who famously said he saw his role as an umpire calling balls and strikes. Gorsuch didn’t even do that, Schumer suggested.

“Instead of an umpire calling balls and strikes in baseball, what we really saw was an expert — a well-trained expert — in dodgeball.”

He ridiculed Gorsuch’s “hollow assertion” that judges don’t have parties or politics.

“If that were true,” Schumer seethed, “we wouldn’t be here, would we? If that were true, and if the Senate was merely evaluating a nominee based on his or her qualifications, Merrick Garland would be seated in the Supreme Court right now.”

Going into the Gorsuch hearings, progressives had been in a bind.

On the one hand, they knew that President Donald Trump was replacing a conservative with a conservative. Indeed, if Gorsuch gets elevated, he will return the court more or less to the status quo before the death of Justice Antonin Scalia more than a year ago. A shift on the court would occur if swing vote Justice Anthony Kennedy, or liberal lioness Ruth Bader Ginsburg, retired.

They know that if they push too hard, Senate Majority Leader Mitch McConnell could pull the trigger, launch the so-called nuclear option, and change the rules to allow Supreme Court nominees to be confirmed not with 60 votes, but a simple majority. That could have big ramifications down the line. Changing the rules of the Senate is no small thing.

Why fight that fight now?

Schumer — representing the other school of thought — answered that question Thursday.

He was buoyed by progressive groups.

“The 60-vote threshold has become important because it reflects that a nominee is sufficiently mainstream that he or she can garner bipartisan support — if a nominee can’t get support from enough senators on both sides of the aisle, then maybe that nominee shouldn’t have life tenure on the Supreme Court,” said Elizabeth Wydra of the progressive Constitutional Accountability Center.

Schumer made clear that he is waging the battle in part for the little guy who might suffer, he believes, if the court’s conservative bent is cemented.

“We do not want judges with ice water in their veins,” he said.

Schumer’s words set the tone.

Sen. Bob Casey also said he’d vote no. Critically, Casey represents one of 10 democrats — up for re-election in 2018 — in vulnerable states that Trump won in last year’s presidential election.

“That could be a big deal as a bellwether,” said Christopher Kang, the national director of the National Council of Asian Pacific Americans who opposes Gorsuch. Kang notes that Casey is one of them.

Kang notes, “It may be idealistic, but I believe there are enough senators who want to preserve the institution and may not vote to invoke the nuclear option.” But he is aware if the option is triggered his side loses.

Writing for the National Review, Ed Whelan, the president of the Ethics and Public Policy Center, is having nothing to do with it.

“If Senate Democrats are serious about filibustering the Gorsuch nomination, that shows that there is no plausible nominee of a Republican president whom they wouldn’t filibuster — and no one worthwhile who would ever get Schumer’s OK.”

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