[W]ASHINGTON — The Senate Judiciary Committee approved Judge Neil Gorsuch’s nomination to the Supreme Court on a strict party line vote Monday morning, setting the stage for a charged floor fight that could further erode the bipartisan conventions that are characteristic of the Senate.
At stake is the future of the filibuster over Supreme Court nominees. Under arcane Senate rules, any Supreme Court nominee must receive 60 votes before he or she can be given a confirmation vote on the floor. While Republicans hold a slim 52-seat majority in the Senate, current rules dictate that eight Democratic senators must vote “Yes” in a cloture vote to bring Gorsuch’s nomination to a Senate floor vote.
And while Supreme Court nominations have historically relied on broad bipartisan support — conservative Justice Antonin Scalia received 98 ‘yes’ votes on his 1988 nomination — many Democrats still harbor resentment over the year-long Republican blockade of Merrick Garland, President Barack Obama’s third nominee.
If Democrats stonewall the nomination as expected, Senate Majority Leader Mitch McConnell, R-Ky., could rewrite Senate rules and discontinue the filibuster for future Supreme Court nominations. McConnell only needs a simple majority of Republicans to do so.
In his remarks at the Monday hearing, U.S. Sen. Patrick Leahy, D-Vt., expressed his frustration over the treatment of Garland. But his anger at Republicans gave way to wistfulness, as he recalled when cooperation was a cornerstone of the Senate.
The chamber’s most senior senator, Leahy retains an interest in maintaining bipartisan decorum, and he has long expressed concern about the politicization of judicial nominees. In an interview with VTDigger last week, Leahy announced his opposition to Gorsuch, but said he was “not inclined” to filibuster him.
Leahy’s comments sparked backlash from the left wing of the party, a bloc demanding universal opposition to President Donald Trump’s actions. Last week, the Progressive Change Campaign Committee sent a letter to Vermont members castigating Leahy over what they described as “squishy comments” about Gorsuch’s nomination.
On Monday, Leahy became the 40th Democrat, including Vermont’s junior Sen. Bernie Sanders, to announce he would support the Democratic filibuster of Gorsuch, virtually ensuring that the party would have the votes to stonewall Gorsuch. Leahy’s announcement was made reluctantly, and he contended that McConnell’s move to eliminate the filibuster over Supreme Court nominees would be “forever damaging to the United States Senate.”
“I never expected to be here long enough to become the Dean of the Senate, but I have,” Leahy reflected Monday. “And for those 42 years I’ve devoted myself to the good the Senate can accomplish. But I cannot vote solely to protect an institution when the rights of hardworking American are at risk, because I fear that the Senate I would be defending no longer exists.”
On Monday, Leahy reiterated his concerns about Gorsuch, which were articulated during a weeklong hearing in late March. Leahy peppered Gorsuch with questions on everything from access to abortion to the rights of corporations.
Leahy said Monday he was concerned that Gorsuch would further politicize the court, and criticized him for being “excruciatingly evasive” on basic questions about past court precedents, such as Brown v. Board of Education, which desegregated public schools.
“These are fundamental questions that we should ask every nominee seeking a lifetime appointment to our highest court,” Leahy said. “Some of the questions I asked him were not intended to be difficult. Several could have been answered by any first year law student with ease. Yet, unless we were asking about fishing or basketball, Judge Gorsuch stonewalled.”
Leahy, who has voted for six Supreme Court nominees of Republican presidents, said he brought an open mind to Gorsuch’s nomination process, though he had a set of concerns he hoped to get thoughtful answers to.
“Judge Gorsuch did nothing to allay those fears, in fact I can say he solidified them,” Leahy said.
Sen. Sanders, I-Vt., also opposes Gorsuch, and supports the 60-vote threshold to move the nomination to a full floor vote. In announcing his opposition to Gorsuch, Sanders cited the nominee’s evasive answers and his views on women, workers, corporations and the Voting Rights Act.
“I had looked forward to Judge Neil Gorsuch sharing his views on the Supreme Court’s critical role on some of the most important issues in America,” Sanders said. “Instead, he refused to answer legitimate questions and brought the confirmation process to a new low in a thick fog of evasion.”
At the judiciary hearing Monday, senators voted on Rod Rosenstein, Trump’s nominee for deputy attorney general.
During his confirmation hearing in early March, Rosenstein faced intense scrutiny because, if confirmed to the No. 2 position at the Department of Justice, he would oversee the Federal Bureau of Investigation’s probe of potential collusion between Trump associates and the Russian government during last year’s presidential campaign.
Rosenstein will be responsible for deciding whether to proceed with any formal charges based on evidence presented by the FBI. Attorney General Jeff Sessions recused himself from making that decision after The Washington Post revealed that the former Alabama senator had met the Russian ambassador twice during election season.
Ahead of Monday’s vote on Rosenstein, Leahy said the prosecutor “has a reputation for integrity that’s unusual for this administration’s nominees.” While Leahy voted Rosenstein out of the committee, he would not say how he would vote on the floor.
“Country has to come before party,” Leahy said. “Mr. Rosenstein assured me and others that, on the matter of Russian interference in our election, he is on the American side — not on the Russian side — and I trust he’ll hold true to that statement.”
