This is the week that the Senate will turn to the nomination of Neil Gorsuch to be an Associate Justice of the Supreme Court. The Majority Leader, Mitch McConnell has vowed to have him confirmed by the end of the week and prior to the Easter recess. The Minority Leader, Chuck Schumer, has promised to filibuster the nomination and force Judge Gorsuch to get 60 votes to be confirmed.
Right now if you assume that all Republicans will vote for Gorsuch the vote counts would stand at 55 for confirmation with the announcements by Senators Manchin (D-WV), Sen. Heitkamp (D-ND) and Sen. Donnelly (D-IN) that they would vote to confirm Gorsuch. All of these Democrats come from very red states and while I believe that Joe Manchin would have supported him on the principle that he is well qualified the other two are doing it purely for political reasons. They want to be reelected and they know this would become a major issue in their campaigns in 2018. There are some other red state Democrats out there that might flip in support of Gorsuch but I am doubtful they will get to the number 60. I suspect that Sen. Tester (D-MT) will eventually support Gorsuch for his own political survival and that will get them to 56.
Sen. Claire McCaskill (D-MO) surprised a lot of people by announcing she will vote no on confirmation. She has always trended more conservative in our election cycle and this was a departure from that. Trump won Missouri comfortably and she will be on the hot seat if Gorsuch fails. If he is confirmed the issue will not be a volatile in her campaign.
Sen. Bennett (D-CO) will have a hard time opposing a fellow Coloradan and that fact that he introduced him in the Judiciary Committee will make it more difficult. Should he move in favor that will get the number to 57. The next three are much more difficult and this would require them voting their conscience and not their politics. Sen. Feinstein (D-CA) is probably not going to run again and she is the Ranking Member of the Senate Judiciary Committee. How she votes on Tuesday in committee will tell us what she will do. If she votes in favor the odds of him getting to 60 just took a major step forward. That would give cover to Senators like Chris Coons (D-DE) and Angus King (I-ME) and Mark Warner (D-VA) to vote yes. Sen. Leahy is another wild card. A former Chairman of the Committee he has said that he does not like the idea of filibustering Supreme Court nominees.
The one number that you will not see in favor of approving the nomination is 59. This is because then every vote against Gorsuch could be used against every Senator casting the vote as the deciding vote. Schumer will not allow that political time bomb to enter into the equation. If he sees that happening he will probably free us some other votes and allow Gorsuch to take a seat on the Supreme Court.
I personally think the Democrats make a major strategic mistake in filibustering Gorsuch. It will force McConnell to change the rule and utilize the so-called “Nuclear Option” which would allow the nomination to move forward with only 51 votes. Any independent analysis of Judge Gorsuch arrives at the conclusion that he is eminently qualified for the position. Filibustering him shows Schumer’s hand that he is simply playing politics. Gorsuch does not change the make up of the Court and the next nomination could very well do so. Justice Ginzberg is now 84 years old and would be retiring if the Democrats had won the Presidency. Justice Breyer is 78 and would also like to retire. Anthony Kennedy is 80 years old and has thought about retirement. By forcing McConnell to use the Nuclear Option now it will be in place should one of these seats come open and that will dramatically change the Court. By allowing Gorsuch to move forward without a filibuster it would make it more difficult for McConnell to change the rule on the next vacancy.
The problem Schumer has is the left wing of the Democrat Party is demanding someone’s scalp and they have their aim focused on Neil Gorsuch. But lets be honest, just as Merrick Garland was the best the Republicans could expect from Obama Gorsuch is the best they can expect from Trump. Should they defeat him the next nominee will be more conservative and how many times do they think they can play that game before they not only lose in the Senate but they lose in the court of public opinion.
The solution is simple. Let Gorsuch be confirmed and live to fight the next nominee.