President Donald Trump shakes hands with Judge Neil Gorsuch after nominating him to the Supreme Court during a ceremony January in Washington, DC. (Getty)
Facing pressure from their constituents, many Democrats in the Senate are vowing to filibuster the nomination of Neil Gorsuch to the Supreme Court.
Now that Gorsuch has been nominated by President Donald Trump, he will head to the Senate Judiciary Committee. This committee consists of 20 members, 11 of whom are Republicans, so there’s little Democrats can do here to obstruct the process.
From there, though, Gorsuch gets a full Senate vote. All that should technically be required is a simple majority of yes votes, and because there are 52 Republicans in the Senate, Gorsuch should theoretically make it through without a problem. But Democrats have the option of filibustering, at which point they force Republicans to gather 60 votes to invoke “cloture.” If that happens, Republicans need the support of eight Democrats in order to get Gorsuch through. For a filibuster to occur, 41 of the 48 Senate Democrats have to be on board.
If they aren’t able to gather 60 votes, Republicans can also use the “nuclear option” and get rid of the filibuster entirely. Democrats already did this in 2013 for lower court nominees, but the filibuster remains intact for the Supreme Court. President Trump recently weighed in, encouraging Republicans to take this route.
“If we end up with that gridlock I would say, ‘If you can, Mitch [McConnell], go nuclear,’” Trump said this week. “Because that would be an absolute shame if a man of this quality was put up to that neglect. I would say it’s up to Mitch, but I would say, ‘Go for it.’”
Democrats are split on how to handle this. One line of thinking suggests that the filibuster should be saved for a few years down the road, when President Trump is likely to get another Supreme Court nominee due to the retirement or death of Ruth Bader Ginsburg. Gorsuch is replacing Antonin Scalia, a conservative Supreme Court justice, and so to approve him is just to get the court back to the place where it was before Scalia’s death. It’s when a liberal justice is being replaced that Democrats should put up a fight, the argument goes. On the other hand, another line of thinking is that the filibuster is essentially already lost, so it makes no difference at all when Republicans nix it with the nuclear option.
Either way, the question going forward is where do all of the 46 Democrats (and two Independents who vote with the Democrats) in the Senate stand on this issue? Each of them has reacted slightly differently to the news of Gorsuch’s nomination. Some have flat out said they will support a filibuster. Others have hinted that they will support a filibuster but haven’t completely committed. Some have been incredibly vague about what they’re going to do, and still others are of the belief that Democrats should definitely not filibuster Gorsuch’s nomination.
Here’s where everyone stands right now:
Definitely Support a Filibuster (13)
The following senators have outright said they will be joining in on efforts to filibuster Neil Gorsuch:
Richard Blumenthal (D-CA) – In an interview with Breitbart this week, Senator Blumenthal said that he is in favor of requiring Neil Gorsuch to receive 60 votes, which would be the goal of a filibuster. “We’re talking here about a nominee to the highest court in the land and a lifetime appointment,” he said. “It should be approved on more than a razor thin majority – it should be more solid, non-partisan consensus behind any nominee who is approved to this very, very significant position.” He added that he and his fellow Democrats are deeply angry and outraged about what happened with Merrick Garland but that they “should never repeat a wrong by Republicans simply out of resentment.”
Tom Carper (D-DE) – Senator Carper said in a statement this week that he will “insist that Judge Gorsuch meet and exceed the highest bar before being approved by the United States Senate.” Carper later told Politico that he believes that Gorsuch should be required to receive 60 votes. This is in contrast to 2006, when Senator Carper did not support a filibuster of Justice Samuel Alito.
Elizabeth Warren (D-MA) – While many Democratic senators released statements after the nomination of Neil Gorsuch saying that they have not yet studied up on him, Warren had already researched Gorsuch and explicitly said she will vote against him. “Every day, our new President finds more ways to demonstrate his hostility for our independent judiciary, our civil society, and the rule of law,” she said. “Now more than ever, America needs Supreme Court justices with a proven record of standing up for the rights of all Americans – civil rights, women’s rights, LGBT rights, and all other protections guaranteed by our laws. We don’t need another justice who spends his time looking out for those with money and influence. Based on the long and well-established record of Judge Gorsuch, I will oppose his nomination.” Warren later confirmed the Boston Globe that she will support a filibuster.
Ed Markey (D-MA) – Like his colleague Elizabeth Warren, Senator Ed Markey has said he will oppose Gorsuch’s nomination, and he also explicitly said he will back a filibuster despite the threat of the nuclear option. “I am also deeply concerned that President Trump has expressed his desire for the Senate to change the rules governing the threshold vote for confirmation of a Supreme Court Justice nominee,” he said. “I will fight steps to invoke the nuclear option for Judge Gorsuch’s nomination or any efforts that would further erode the foundational pillars of our democratic process.”
Debbie Stabenow (D-MA) – Senator Stabenow has not committed to voting against Gorsuch, but she says she has “great concerns” about him and that she thinks the 60-vote threshold is appropriate. “The cases I’ve seen that he has ruled on I’m very concerned about,” she said. “But I think the biggest thing is that it needs to be a coming together and you do that with 60 votes.”
Amy Klobuchar (D-MN) – Senator Klobuchar said in a statement that she will study Neil Gorsuch’s record but said that she already has “concerns about his views and record on issues including those involving separation of powers, campaign finance, and consumer protection.” She went on to say that “to be clear, there is a 60 vote threshold for this nominee to be confirmed, it’s not 51 like the other nominees that are before us now.”
Claire McCaskill (D-MS) – It was initially unclear how Claire McCaskill would fall on the filibuster issue. She’s from a red state, and her communications director would only tell The St. Louis Dispatch that McCaskill supports her colleague’s right to filibuster, not commenting on whether she supports one herself.” She also tweeted on Tuesday, “We should have a full confirmation hearing process and a vote on ANY nominee for the Supreme Court.” Later, however, she clarified that she is in favor of a 60 vote threshold, saying, “I support requiring a 60 vote margin for all Supreme Ct nominees.”
Martin Heinrich (D-NM) – Senator Heinrich in his statement didn’t comment that much about Gorsuch himself but said that he is in favor of requiring 60 votes. “After ignoring Judge Garland’s nomination for purely partisan reasons, Senate Republicans are already talking about changing the Senate rules to confirm Trump’s nominee if Democrats don’t simply defer,” he said, referring to the nuclear option threat. “…New Mexicans have made it clear to me that now more than ever they want an independent judiciary committed to defending the Constitution and the rule of law. I agree and any nomination to the highest court in the land should require more than a simple majority vote to ensure as much.”
Chuck Schumer (D-NY) – Chuck Schumer, the Senate minority leader, has committed to a Democratic filibuster of Neil Gorsuch. “We Democrats will insist on a rigorous but fair process,” Schumer said this week. “There will be 60 votes for confirmation. Any one member can require it. Many Democrats already have, and it is the right thing to do. On a subject as important as a Supreme Court nomination, bipartisan support should be a prerequisite. It should be essential. That’s what 60 votes does.” Schumer said in January that Democrats would fight whomever Trump nominates if they are outside of the mainstream. “We are not going to make it easy for them to pick a Supreme Court justice,” he said at the time.
Kirsten Gillibrand (D-NY) – Senator Gillibrand has stated that she will oppose Gorsuch’s nomination because “Time and again, Neil Gorsuch has put the rights of corporations over individual rights. It’s clear that his judicial philosophy is outside of the mainstream.” She went on to say that “I’ll oppose Gorsuch’s nomination and insist that it meet a traditional 60 vote threshold.”
Jeff Merkley (D-OR) – Senator Jeff Merkley told Politico this week that he will filibuster any Supreme Court nominee that isn’t Merrick Garland, saying that Garland’s seat was stolen by Republicans. “This is the first time in American history that one party has blockaded a nominee for almost a year in order to deliver a seat to a President of their own party,” he said. “If this tactic is rewarded rather than resisted, it will set a dangerous new precedent in American governance.”
Jack Reed (D-RI) – Senator Jack Reed committed to a filibuster as well, saying in his statement, “All of President Obama’s Supreme Court nominees cleared a sixty vote threshold and President Trump’s nominee should adhere to the same standard.” He also expressed opposition to Gorsuch himself, saying, “Judge Gorsuch’s record in the lower court suggests he could impose significant new constraints on civil liberties, women’s rights and workers’ rights, and roll back consumer protections and clean air laws. I am concerned that Judge Gorsuch has a tendency to favor the interests of big corporations and special interests over every day Americans.”
Patty Murray (D-WA) – Murray said in her statement that she is concerned about Trump’s pick and that she has “serious concerns about moving forward with a Supreme Court nomination at this time and will be joining with those pushing back against jamming this nominee through or rushing a confirmation in any way.”
Seem to Be in Support of a Filibuster (12)
The following senators haven’t definitively said they will filibuster Gorsuch, but their statements imply that they will likely be on board for one:
Dianne Feinstein (D-CA) – Feinstein seems to be leaning towards supporting a filibuster based on comments she has made this week. In an interview on MSNBC, Feinstein said that the way Merick Garland was treated was “just appalling” and that she won’t bow down to Trump’s threat of invoking the nuclear option. “That’s another threat in a long line of threats,” she said. “And this Congress needs to stand on its own. We are a separate branch of government. We do have our ideals. Many of us are experienced and have been here for a while and I don’t want to see the Senate of the United States bow down to an executive demand like this. As I said, we’re prepared to do our due diligence, we’re prepared to move ahead. But understand the difficult circumstances under which this is happening. And I don’t think that’s too much to ask.”
Kamala Harris (D-CA) – On the night that Neil Gorsuch was announced as Donald Trump’s Supreme Court nominee, Senator Harris tweeted, “I am troubled by the nomination of Judge Gorsuch and will fight to ensure the voice of the American people is heard in this process.” She has not specifically mentioned the possibility of a filibuster, although her pledge to fight his nomination seems to imply that she supports that effort.
Brian Schatz (D-HI) – In a statement released after the nomination of Neil Gorsuch, Senator Brian Schatz said that he is disappointed in Trump’s pick, adding that Gorsuch “does not appear committed to ensuring these rights and who is outside of the legal mainstream.” He does not make mention of a filibuster, however.
Mazie Hirono (D-HI) – Senator Hirono in her statement said she is worried that Trump’s Supreme Court justice will be a rubber stamp for his agenda, although she didn’t actually comment on Gorsuch himself. “I am deeply concerned that his choice for the Supreme Court, Judge Neil Gorsuch, will be a rubber stamp for the President’s radical agenda,” she said. “We owe it to the American people to vet this nominee extensively and exhaustively. In the weeks and months ahead, I will carefully scrutinize Judge Gorsuch’s judicial philosophy, his views on a woman’s constitutional right to an abortion, his position on voting rights, and his thoughts on the balance between individual rights and corporate power, among other subjects.”
Tammy Duckworth (D-IL) – Duckworth said in a statement that while she will reserve judgement on Gorsuch until his hearing, she is troubled by his record, including his “undermining the federal government’s ability to protect labor and environmental rights, his hostility toward a woman’s right to make her own reproductive choices, and by one of his previous rulings that refused to hold law enforcement accountable for excessive force that led to a young man’s death.”
Ben Cardin (D-MD) – Cardin in his statement did not comment much about Gorsuch specifically, but he said that, assuming Gorsuch he fits into the “extremist mold” of Antonin Scalia, he finds that troubling. He also criticizes Senate Republicans for their handling of the nomination of Merrick Garland. “For nearly a year, Mitch McConnell and Senate Republicans shamefully failed to respect that President Obama was the duly elected president and had the authority and responsibility to put forward a nominee for the United States Supreme Court – and the Senate had the obligation to provide advice and consent for that nominee, Merrick Garland,” he said. “This reckless course of action by the Republican leadership has inflicted lasting damage on the Supreme Court and the independence of the federal judiciary while diminishing the powers and duties of the Senate.”
Al Franken (D-MN) – Senator Franken said in his statement that he is disappointed Trump did not appoint a more moderate justice and that he has “serious concerns about his judicial philosophy-especially on issues like access to justice, corporate accountability, workers’ rights, and women’s health.” He didn’t specifically mention the possibility of a filibuster, though.
Cory Booker (D-NJ) – On the night of the Gorsuch announcement, Booker simply tweeted, “I will not vote for Judge Gorsuch. I will oppose his nomination.” In his full statement, Booker said, “The Senate’s duty to advise and consent does not mean being a rubber stamp, and having begun the process of reviewing Judge Gorsuch’s extensive judicial record I have very serious concerns about his nomination.”
Tom Udall (D-NM) – Udall said on Twitter that he will “review Gorsuch’s record before deciding my vote” but that he believes America would be better off with a more mainstream judge and that he will “always fight for a woman’s right to choose.” Trump has said that his nominee will be someone who is pro-life and that they will help to overturn Roe v. Wade. In a video statement, Udall said, “Let me be clear: I will fight for a woman’s right to make her own healthcare decisions.” It’s unclear if that involves supporting a filibuster.
Sherrod Brown (D-OH) – Senator Brown said this week that he is opposed to Gorsuch’s nomination, while not specifically commenting on the filibuster. “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,” he said. “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, and any nominee must be willing to defend their rights to make their own healthcare decisions, collectively bargain for safe workplaces and fair pay, and to be protected from discrimination and Wall Street greed.”
Ron Wyden (D-OR) – Senator Wyden released a strongly worded statement in which he said that Gorsuch’s nomination “represents a breathtaking retreat from the notion that Americans have a fundamental right to Constitutional liberties, and harkens back to the days when politicians restricted a people’s rights on a whim.” He particularly took issue with Gorsuch’s opposition to assisted suicide and euthanasia, saying, “His opposition to legal death with dignity as successfully practiced in Oregon is couched in the sort of jurisprudence that justified the horrific oppression of one group after another in our first two centuries.”
Tammy Baldwin (D-WI) – Senator Baldwin criticized Gorsuch in her statement, saying, “Instead of putting forward a mainstream nominee for the vacant Supreme Court seat, [Trump] has offered someone who will have a hard time earning bipartisan support.”
Haven’t Committed Either Way (20)
The following senators issued statements that are incredibly vague and really give us no indication whether they support or oppose a filibuster:
Chris Murphy (D-CT) – Senator Murphy released a statement after the nomination of Judge Gorsuch saying that he will “take a close look at Judge Gorsuch’s record and judicial philosophy, and ultimately make my decision based on whether he meets those straightforward expectations,” but adding that he wants a “mainstream judge, not an ideological partisan.” Based on his voting history, one would expect Murphy to back the filibuster, but he hasn’t committed one way or the other at this time.
Michael Bennet (D-CO) – In contrast to many of his Democratic colleagues, Senator Bennet issued a statement Tuesday night congratulating Judge Gorsuch on his nomination. “As a fellow Coloradan, Michael congratulates Judge Gorsuch and his family,” he said. The statement goes on to say that the senator “takes seriously the Senate’s responsibility to advise and consent on Supreme Court nominations” and that he “intends to review Judge Gorsuch’s record carefully in the coming weeks.”
Chris Coons (D-DE) – Chris Coons has warned his fellow Democrats not to treat Neil Gorsuch like Republicans treated Merick Garland, saying, “I’m not going to do to President Trump’s nominee what the Republicans in the Senate did to President Obama’s. I will push for a hearing and I will push for a vote” However, he seemed to be more objecting to the idea of not giving Gorsuch a hearing at all rather than backing a filibuster. “Senator Schumer has already said he will insist on a 60-vote margin for this vote,” Coons told NPR. “That is technically, quote, unquote, “a filibuster,” but I find in talking to folks at home in Delaware that they have a image in their head – perhaps from movies – that a filibuster means putting on a diaper, staying up all night and talking for 12 hours. What I’m focused on is the first step which is ensuring that Judge Gorsuch gets the full and thorough hearing and vetting in front of the Senate Judiciary Committee that D.C. Circuit Judge Merrick Garland, nominated by President Obama for this vacancy nearly a year ago, never received.”
Bill Nelson (D-FL) – Senator Bill Nelson has not yet said anything critical of Gorsuch, releasing a statement this week that stated, “I will base my decision on a full examination of Judge Gorsuch’s judicial record and his responses to senators’ questions.” He later told Politico that he is concerned “about [Gorsuch’s] positions on the suppression of voting rights and the undisclosed and unlimited campaign money,” but he declined to comment on how he plans to approach the vote.
Dick Durbin (D-IL) – Dick Durbin simply said in his statement this week that he will support a hearing and a vote for Neil Gorsuch and that “This Supreme Court seat does not belong to President Trump or to any political party. It belongs to the American people, and I will work to make sure their voices are heard in this debate.” For what it’s worth, Durbin voted to confirm Gorsuch as a federal judge in 2006.
Joe Donnelly (D-IL) – Senator Donnelly released a generic, noncommittal statement this week in which he said that he “will carefully review and consider the record and qualifications of Neil Gorsuch.” Donnelly is one of 10 senators up for re-election next year in a state that Donald Trump won, and so there is a very realistic chance that he will join the Republicans in voting to confirm Gorsuch.
Angus King (I-ME) – Though Angus King is an Independent, he caucuses with the Democrats. He said in his statement “My approach to considering Judge Gorsuch’s nomination will be consistent with my approach to considering Merrick Garland’s nomination last year: I will listen to the views he expresses before the Senate Judiciary Committee and carefully evaluate his record to understand his judicial philosophy and temperament. At the end of this process, I will make an independent judgment based on whether or not I believe he will interpret the law in accordance with existing statutes and precedent, and most importantly, in accordance with the Constitution.”
Gary Peters (D-MI) – In his statement, Senator Peters criticized Republicans for how they handled Merrick Garland, saying that unlike the Republicans, he takes his duty of filling court vacancies seriously. As to Gorsuch himself, Peters did not really comment either way, saying he will have to review his record. “As President Trump’s nominee moves through the judicial hearing process, I will be carefully reviewing his qualifications to serve on the Supreme Court, which is a pillar of American democracy,” he said.
Jon Tester (D-MT) – Tester, who is from a state that Trump won and who is up for re-election in 2018, said in his statement, “In the coming weeks, I will be thoroughly reviewing the qualifications of President Trump’s nominee to the Supreme Court, Judge Gorsuch. It’s critically important that he has an understanding of the Constitution and is willing to defend it. I look forward to sitting down with Judge Gorsuch, looking him in the eye, asking him tough questions, and finding out if he shares our Montana values.”
Jeanne Shaheen (D-NH) – Shaheen simply said in her statement that she will review Gorsuch’s record in the coming days. “The independence of the Supreme Court is of utmost importance,” she said. “Judge Gorsuch must demonstrate that he will rule independently of political influence or pressure, and defend the Constitution. I will thoroughly review Gorsuch’s record and his testimony during the nomination process. However, I will not support any candidate who intends to turn back the clock on civil rights, including women’s reproductive rights and LGBT equality.”
Maggie Hassan (D-NH) – Senator Hassan said she will review Gorsuch’s record but that she wants to make sure the Supreme Court nominee will serve as a check on the executive branch. “I will thoroughly review Judge Gorsuch’s record throughout the hearing process so that I – and the American people – can determine whether he would protect the civil rights of all Americans and how he would evaluate the constitutionality of executive orders like President Trump’s un-American immigration ban,” she said.
Bob Menendez (D-NJ) – Senator Menendez said in his statement, “I plan to carefully and closely review Judge Gorsuch’s entire legal career and judicial record, meet with him personally and determine if his interpretation of our Constitution is representative of long-standing American values. He must prove his dedication to fairness, nondiscriminatory justice, the equal protection of all Americans under the law, and the ideals of this country.”
Heidi Heitkamp (D-ND) – Heitkamp is one of the senators who is up for re-election next year in a state that Donald Trump won. With that in mind, it seems she could go either way on this. She told Politico that she is undecided both on Gorsuch himself and on whether to join in on a filibuster. She rejected the notion that her decision might be influenced by the fact that she faces an election next year, saying, “This idea that somehow you can bully me into doing something that I don’t think is right for the country by saying ‘You’re from a red state.’ This idea that, ‘Oh, she’s up for reelection and she’s going to be scared’? Anyone who says that about me doesn’t know me that well.” Heitkamp has voted to approve every one of Trump’s cabinet nominees so far, including Rex Tillerson as secretary of state.
Bob Casey Jr. (D-PA) – Senator Casey issued a statement saying that he is concerned that “far right groups presented an edict to Donald Trump when he was a candidate, demanding that he select a nominee from their approved list.” When it comes to Gorsuch himself and the filibuster issue, though, Casey simply said that he would “thoroughly review Judge Gorsuch’s record, particularly his appellate decisions and his answers to questions during the hearing and those submitted in writing afterward.”
Sheldon Whitehouse (D-RI) – Senator Whitehouse used his statement to run through a series of issues that the next Supreme Court justice should work to deal with, such as the influence of special interests on the political process, but he didn’t say anything about Gorsuch himself or about a filibuster.
Patrick Leahy (D-VT) – Senator Leahy in his statement criticized Republicans for how they handled the nomination of Merrick Garland, adding that his initial impression of Gorsuch is negative. “From my initial review of his record, I question whether Judge Gorsuch meets the high standard set by Merrick Garland,” he said. “And with the ideological litmus test that President Trump has applied in making this selection, the American people are justified to wonder whether Judge Gorsuch can truly be an independent justice. I intend to ask Judge Gorsuch about these and other important issues in the coming months.”
Bernie Sanders (I-VT) – Though Bernie Sanders is an Independent, he caucuses with the Democratic party. Sanders said in his statement that he plans to speak with Gorsuch about issues such as campaign finance reform. “I look forward to questioning Judge Gorsuch about his positions on the most important issues that impact Vermonters and all Americans and his views on recent Supreme Court decisions,” he said.
Mark Warner (D-VA) – Senator Warner was more positive in his statement than most Democrats, saying that Gorsuch “has an impressive résumé and academic background.” He goes on to say, however, that “his record must be thoroughly vetted to ensure his views and judicial philosophy are not out of the mainstream.” He did not specify whether he would back a filibuster if he determines Gorsuch is out of the mainstream.
Tim Kaine (D-VA) – Senator Kaine said in his statement that he intends to “carefully scrutinize [Gorsuch’s] temperament and record, particularly on civil rights and other Constitutional guarantees.” In general, Kaine has talked about doing whatever it takes in Congress to fight the Trump agenda, which might mean he’ll end up in support of the filibuster. “What we’ve got to do is fight in Congress, fight in the courts, fight in the streets, fight online, fight at the ballot box, and now there’s the momentum to be able to do this,” Kaine said earlier this week. “And we’re not afraid of the popular outcry, we’re energized by it and that’s going to help us do our job and do it better.”
Maria Cantwell (D-WA) – Senator Cantwell said that Americans deserve a Supreme Court that will protect their rights, but in terms of Gorsuch specifically, she stated that she “will review Judge Gorsuch’s record thoroughly, follow his nomination hearings closely, and I plan to meet with him to ask my own questions. I will be weighing these considerations along with the comments of my constituents as I consider this nomination.”
Have Not Made Any Comment (2)
The following senators have not commented on Donald Trump’s nomination of Neil Gorsuch at all:
Chris Van Hollen (D-MD) – Hollen has not said anything about the Gorsuch pick. He has voted against three out of five of Trump’s cabinet nominees.
Catherine Cortez Masto (D-NV) – Cortez Masto has said nothing either way about the nomination of Neil Gorsuch. She has voted against three out of five of Trump’s cabinet nominees.
Seem to Not Support a Filibuster (1)
Joe Manchin (D-WV) – Senator Manchin this week criticized his Democratic colleagues, saying they weren’t giving Gorsuch a fair shake. Manchin said in an MSNBC interview, “let’s give the man a chance, talk to him. My goodness, don’t shut it down before we even get started. Two wrongs don’t make a right.” He went on to specifically praise Gorsuch, saying, “I understand he has [basically] impeccable credentials, well thought of in a class with Barack Obama at Harvard, and he got overwhelmingly unanimous consent when he came through this process before.” He did say that he opposes the nuclear option, but he didn’t say anything about what he would do if Democrats called for a filibuster.