In it, but not of it. TPM DC

Dems Finally Have A Chance For Revenge On SCOTUS, But Will They Take It?

AP Photo / Carolyn Kaster

But now that President Trump has named Neil Gorsuch, to be his nominee for the Supreme Court, Democrats are in the midst of making one of their toughest choice to date in the Trump era: will they use the filibuster to deny Trump what Republicans denied Obama last year?

Democrats are caught between giving Trump his way on the Supreme Court or digging in and fighting Trump's nominee tooth and nail with the awareness that invoking the filibuster could lead Majority Leader Mitch McConnell to "go nuclear" and change the rules so that Trump would only need 51 votes to approve of his Supreme Court nominee instead of the 60 that is currently required.

Democrats already have announced they will require Trump's Supreme Court nominee to get 60 votes to be approved. In a statement Tuesday night, Senate Minority Leader Chuck Schumer (D-NY) said “the Senate must insist upon 60 votes for any Supreme Court nominee, a bar that was met by each of President Obama’s nominees."

“The burden is on Judge Neil Gorsuch to prove himself to be within the legal mainstream and, in this new era, willing to vigorously defend the Constitution from abuses of the executive branch," Schumer's statement said.

But requiring 60 votes still would not necessarily deny Trump his choice for the Supreme Court – if Democrats can't hold together as a group. Whether they can remains unclear.

"The American public deserves a thorough vetting. People need to make sure that we have a Supreme Court justice who is in the mainstream and ultimately that's why we have a 60-vote requirement to make sure whoever it is can get that consensus," said Sen. Chris Van Hollen (D-MD) said before Trump's nominee was announced. "I'm very worried that the person may not fit that pattern, but we need to wait and see."

There is no denying that treatment of Obama nominee Merrick Garland, the respected chief judge of the Court of Appeals for the D.C. Circuit, is weighing heavily on Democrats' decision making at the moment, as is the fact that Democrats have been unable to stop Trump's other cabinet nominees so far because of a 2014 Democratic rules change. But Garland wasn't just denied a Supreme Court seat. Garland wasn't even given an opportunity for a hearing, a committee vote or a floor vote, and Democrats say that has consequences.

"One of the unfortunate consequences of the Garland obstructionism has been to show that in fact the Supreme Court can function with eight members," said Rep. Richard Blumenthal (D-CT).

Democrats remain confident that Republicans will be careful about just going "nuclear" on them even if they do block Trump's Supreme Court pick.

"Because Democrats and Republicans would regret it down the line, I foresee no rules change," Blumenthal said, adding he wasn't looking for a "tit for tat."

For now, Merkley, Sen. Ron Wyden (D-OR), Sen. Elizabeth Warren (D-MA) and Sen. Sherrod Brown (D-OH), are publicly opposed to Trump's nominee. Merkley announced that decision before Trump even made his pick.

"I will be personally casting a 'no vote' whenever the opportunity arrises," Merkley told TPM Tuesday.

Others announced their opposition after the announcement.

“The people of Ohio deserve Supreme Court Justices who will defend the rights of working families over Wall Street and corporate special interests – and Judge Gorsuch’s record doesn’t pass that test,” Brown said in his statement. “I cannot support any nominee who does not recognize that corporations are not people. The Supreme Court has enormous influence over the lives of everyday Ohioans."

But others have said they wanted to weigh the qualifications of Trump's Supreme Court pick before publicly discussing political strategy or weighing in on the filibuster.

"I don't want to go there," Sen. Dianne Feinstein (D-CA) told reporters before the announcement. In her released statement after the announcement, Feinstein noted she had concerns.

"I believe very strongly that my decision on this Supreme Court nominee will be one of the most significant and fateful of the votes I cast in the United States Senate forever," Blumenthal said.

Blocking Trump's Supreme Court pick could be the only opportunity Democrats have to stop any high-level Trump nominee, a tempting calculation for a party that has been unable so far to stop a single one of Trump's cabinet nominees from getting approved because of a 2014 rules change that lowered the threshold for cabinet nominees from 60 votes to 51, but it's not a move they will be taking lightly.

"I am going to look at the Supreme Court nominee like every one I have had a chance to cast a vote on since I got here, and I'm going to judge whether they are in the mainstream," said Sen. Bob Menendez (D-NJ)

About The Author

Lauren Fox is a reporter at Talking Points Memo.