Supreme Court Fight Is More About Trump Than Gorsuch

http://www.nytimes.com/2017/02/02/us/politics/trump-supreme-court-gorsuch-senate-democrats.html

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WASHINGTON — This is a rare Supreme Court confirmation fight that will be more about the nominator than the nominee.

In light of President Trump’s selection of Judge Neil M. Gorsuch just as the new president’s aggressive and contested use of executive power came into view, Democrats intend to aggressively question whether Judge Gorsuch will hold in check the man who seeks to elevate him to the nation’s most influential court.

Democrats believe a unique sequence of events — issuing a constitutionally questionable executive order on Friday, firing an acting attorney general who refused to defend it on Monday and nominating a Supreme Court justice on Tuesday — places executive overreach and separation of powers squarely at the center of the confirmation debate.

“His administration, at least at its outset, seems to have less respect for the rule of law than any in recent memory, and is challenging the Constitution in unprecedented fashion,” Senator Chuck Schumer of New York, the Democratic leader, said of Mr. Trump on Wednesday on the Senate floor. “There’s a special burden on this nominee to be an independent jurist.”

Democrats will still meticulously pick through the record of Judge Gorsuch, who sits on the federal appeals court in Colorado, in search of disqualifying material, and they are already raising questions about what they see as business-friendly rulings. But it is easy to envision them pressing him directly on whether he found the recent executive order on immigration, and perhaps others, to be constitutional. The wrong answer for Democrats or a refusal to respond directly could then translate into a reason to oppose Mr. Gorsuch.

Senator Mark Warner, Democrat of Virginia, put it this way: The American people deserve a court that comprises those capable of “serving as an independent and vigilant check on the other branches of government.”

Democrats are facing heated demands from many of their supporters to give no ground and stand firm against Judge Gorsuch in retaliation for the refusal by Senate Republicans last year to take up the nomination of Merrick B. Garland, picked by President Obama in March.

But top Democrats believe that simply blocking the nomination without a reasonable rationale would make it easier for Senate Republicans to justify changing Senate practices to eliminate the filibuster against Supreme Court nominees. They were not happy when some colleagues said they would reject anyone before knowing the nominee’s identity — even though that is what Republicans did when Senator Mitch McConnell of Kentucky, the majority leader, shut down the nomination process last year before the choice of Mr. Garland.

Democrats are making it clear that Mr. Gorsuch will have to attract at least 60 votes — the threshold to defeat a filibuster — if he is to take his seat on the court. That means at least eight Democrats will have to agree not to filibuster, and Republicans are already taking aim at 10 Democrats up for re-election in two years in states that Mr. Trump carried in an effort to bring those senators on board.

One Democrat, Senator Joe Manchin III of West Virginia, has already declared that he will not join any filibuster. A handful of other Democrats have also indicated that any nominee deserves a vote — a contrast they will draw repeatedly with the Republican treatment of Mr. Garland. But that does not necessarily mean they will vote to end a filibuster if it gets that far, and Mr. Gorsuch still needs to win over several lawmakers among the Democrats or the two independents if he is to be successful.

Mr. Trump and Senate Republicans are emphasizing that Mr. Gorsuch was confirmed to his current position on the United States Court of Appeals for the 10th Circuit in 2006 by a voice vote, meaning that no senator raised an objection. Senator John Cornyn of Texas, the No. 2 Republican, said Wednesday that that means he “was essentially voted unanimously” with the support of several current Democrats, though there is no roll call record of such a vote.

“So I think it’s going to be really important for the American people, as they hear the inevitable criticism of this nomination, that they remember the senators who were here at the time Judge Gorsuch was confirmed to the 10th Circuit,” Mr. Cornyn said.

Democrats fired back that several senior Republicans supported Justice Sonia Sotomayor for lower-court posts and then opposed her ascension to the Supreme Court. It is but one more example of how the parties completely reverse positions on court nominees depending on which party holds the White House and the Senate.

While reluctant to give Senate Republicans any ammunition to overturn the filibuster against Supreme Court nominees, Senate Democrats are growing increasingly comfortable with employing the kind of blocking tactics they denounced when used by Republicans against them and Mr. Obama.

This week alone, they have boycotted committee hearings to thwart votes on cabinet nominees and invoked a seldom-used rule to force committees to shut down two hours after the Senate came into session, slowing down the confirmation process. Republicans labeled the tactics childish and obnoxious.

But as Democrats gaze around the Senate floor, they see a Republican majority that seems to have prospered despite years of instituting its own blocking maneuvers and its very bold decision to stall the Garland nomination for nearly a year. Democrats say they have learned from the master himself: Senator Mitch McConnell.