Like a master of ceremonies at a beauty pageant, President Trump unveiled his Supreme Court nominee Judge Neil Gorsuch to a crowd of applauding Washington lawmakers at the White House. But there was a notable absence: none of the invited members of the Democratic Congressional leadership was there to clap along.
“I’m not going to be part of a cheering session for a nominee who I don’t even know ahead of time who it’s going to be,” clucked Sen. Dick Durbin, the second-ranking Democrat in the Senate before the event on Tuesday night.
Tuesday night’s ceremony was yet another sign that any glimmer of bipartisan goodwill under President Trump has evaporated. Eleven days into his presidency, Democrats are signaling they are ready to lead an all-out filibuster against President Trump’s nominee to fill Antonin Scalia’s seat on the Supreme Court.
By Tuesday night, several Democrats said that they would oppose Gorsuch’s nomination outright. Many more are likely to follow in the coming days and weeks as Gorsuch goes through a hearing and vetting process on Capitol Hill.
“We don’t need another justice who spends his time looking out for those with money and influence,” said Sen. Elizabeth Warren of Massachusetts in a statement that she would oppose his nomination.
“I cannot support any nominee who does not recognize that corporations are not people,” said Ohio Sen. Sherrod Brown.
Sen. Chuck Schumer, the Senate minority leader, said in a highly critical statement of Gorsuch that he would “require an exhaustive, robust, and comprehensive debate on Judge Gorsuch’s fitness to be a Supreme Court Justice.”
It is an unprecedented show of opposition by Democrats so early into the Supreme Court nomination process. In 2005 Democrats helped to confirm Chief Justice John Roberts. Though a handful in 2006 halfheartedly sought to launch a filibuster against then-President George W. Bush’s nominee, Samuel Alito, they ultimately confirmed him, too.
But this year is different. Many Democrats believe Trump won the election unfairly. They are appalled by Trump’s executive action on Friday banning refugees from seven Muslim-majority countries from entering the country. Trump, they say, wants to roll over Congress, ignore precedent and force through unacceptable Cabinet nominees. And after a tumultuous first week with the president, Democrats are not in a mood to compromise.
History also hangs heavily over the party. Democratic leaders are still furious that Republicans last year did not give President Obama’s moderate nominee for the Court, Judge Merrick Garland, a hearing or a vote, instead holding the seat open until after the November election. Democrats are stinging from the rebuke and want payback.
“They broke all the precedents and they need to own that,” said Connecticut Sen. Chris Murphy. “The ghost of Merrick Garland still floats around this place.”
Democrats are under intense pressure from their liberal base to oppose any nominee Trump puts forward. On Tuesday outside of Schumer’s apartment in Brooklyn, liberal protestors staged a rally called “What the F–k, Chuck,” protesting him for allowing through a handful of Trump’s security-related nominees. At a demonstration held by top Democratic lawmakers in support of Muslim refugees on the Supreme Court steps on Monday, some in the liberal crowd booed at the lawmakers. “Do your job!” they chanted.
Still, Democrats are wary of giving into the loudest voices in their base.
“The opposition comes in various grades,” said Durbin. “Some are scorched-earth, day-one, why-haven’t-you-impeached-him-yet type people. But we have to approach this thing in a rational, sensible, constitutional fashion.”
If Democrats filibuster the Supreme Court nominee, Republicans may invoke the so-called “nuclear option” and change the Senate rules to allow a Supreme Court nominee to be confirmed with a simple majority—prohibiting future filibusters on nominees. Sen. Mitch McConnell, despite a decades-long appreciation for the traditional rules of the Senate, has been vague about whether he would change the rules.
“The nominee will be confirmed,” McConnell said in an interview with Fox News on Sunday. That has led some Democrats to worry that initiating a filibuster will lead to a self-inflicted wound.
Just as worrying for the party are the 10 seats held by Democrats up for reelection in 2018 who represent states that Trump won in November. If Democrats obstruct Trump’s nominee—particularly one as typically among conservatives as Gorsuch—they could take a beating in the midterms and further erode the party’s power in the Senate.
Democrats who oppose Trump’s nominee, could face a flood of advertisements and conservative dollars. Missouri Sen. Claire McCaskill, a state Trump won overwhelmingly, said that she wants any Trump nominee to receive full consideration.
“We should have a full confirmation hearing process and a vote on ANY nominee for the Supreme Court,” she said on Twitter. But she also said the nominee would need to pass a 60-vote threshold. “I support requiring a 60 vote margin for all Supreme Ct nominees,” she added.
Still, there could be an even greater danger in opposing the progressive base. Activist groups are marshalling their members to attack and oppose any senators who support a nominee that is not mainstream enough.
“If Trump nominates an extremist,” said Ben Wikler, the Washington Director of MoveOn.org, a liberal activist group, “that’s a moment of truth that will shape the political lives of everyone who has to make a decision about how to react.”