WASHINGTON — Supreme Court nominee Neil Gorsuch cleared his first hurdle at the Senate Judiciary Committee Monday as Democrats attained the votes needed to block his confirmation, setting up a political brawl over the future of the high court that Republicans vowed to win.
The panel's 11-9 vote along straight party lines sent Gorsuch's nomination by President Trump to the Senate floor, where Majority Leader Mitch McConnell has promised a vote by Friday in order to seat the federal appeals court judge in time to hear cases later this month. "It’s not too late for our Democratic colleagues to make the right choice," he said.
The initial vote came even as Democrats reached the 41-vote threshold required to prevent Gorsuch's nomination from reaching the Senate floor under ordinary circumstances. But these are not ordinary circumstances; Republicans, after blocking President Barack Obama's choice for the open seat last year, have vowed to eliminate Supreme Court filibusters by changing the Senate's rules.
That means Gorsuch's final confirmation isn't really in doubt, but how it is achieved will have a profound impact on the high court, the Senate and the 2018 elections.
“If we have to, we will change the rules, and it looks like we will have to,” Sen. Lindsey Graham, R-S.C., said.
"We have no choice," Sen. Orrin Hatch, R-Utah, said. White House spokesman Sean Spicer agreed, accusing Democrats of "playing politics with the nation's highest court," Spicer said.
Senate Minority Leader Chuck Schumer, D-N.Y., disagreed. Republicans "have total freedom of choice in this situation," he said. "No one is forcing them to break the rules."
The committee vote came just 62 days after Trump nominated the 49-year-old federal appeals court judge from Colorado — a vote McConnell denied Obama's nominee, Merrick Garland, for 293 days last year. Republicans said Obama should not get to replace the late conservative Justice Antonin Scalia in an election year, prompting Democrats to complain that the seat was stolen.
Now the stage is set for Senate votes Thursday and Friday -- the first to end debate on the nomination, the second to confirm Gorsuch. Democrats can win the first vote. If they change Senate rules, Republicans can win the second.
“Judge Gorsuch is eminently qualified. He’s a mainstream judge," Sen. Chuck Grassley, R-Iowa, the committee chairman, said before the panel's vote, which followed four days of hearings last month. "He's the picture of the kind of justice we should have on the Supreme Court.”
But Sen. Al Franken, D-Minn., said Gorsuch's record at the 10th Circuit shows that he "will guarantee 40 more years of 5-4 decisions favoring corporations over workers and consumers." Sen. Sheldon Whitehouse, D-R.I., called it "a new right-wing gang of five."
The panel's 20 members engaged in a final round of angry debate between Republicans determined to confirm Gorsuch -- Sen. John Kennedy, R-La., called him "a legal rock star" -- and Democrats still seething at the GOP's refusal even to hold a hearing on Garland last year.
The party-line vote represented a major step toward restoring the conservative majority on the Supreme Court lost last February when Scalia's death led to a political standoff involving all three branches of government.
For the last few days, an increasing number of Democrats — even those from states that Trump won — have announced they will support a filibuster. Only four Democrats have opposed requiring 60 votes, the latest being Gorsuch's home-state Democratic senator, Michael Bennet.
One of the last Democrats to decide how to vote was Sen. Patrick Leahy, D-Vt., former chairman of the judiciary committee, who has voted to confirm six previous Republican presidents' nominees. On Monday, he said, “My conscience will not allow me to ratify the majority leader’s actions…. I will not, I cannot, support advancing this nomination.”
In the middle of the storm is Gorsuch, 49, a folksy but scholarly Coloradan whose résumé and reverence for the Constitution, laws and precedents have captivated Republicans and unnerved Democrats.
A 10-year veteran of the U.S. Court of Appeals for the 10th Circuit by way of Columbia University, Harvard Law School and the University of Oxford, Gorsuch coasted through more than 20 hours of questioning by committee members last month. He did so without revealing his views on issues that could come before the high court in the years ahead, from abortion and affirmative action to gay rights and gun control.
The performance virtually assured the result of Monday's committee vote by uniting its 11 Republicans while putting the nine Democrats in what Feinstein called "a terrible position." Only once before has a filibuster blocked a high court nominee: Justice Abe Fortas, whose 1968 nomination to be chief justice later was withdrawn.
Since Gorsuch's appearance at the White House with Trump on Jan. 31, he has been characterized by Republicans as a stellar jurist beyond reproach and caricatured by Democrats as a tool of right-wing zealots and corporate profiteers.
His supporters have trotted out loyal ex-colleagues and law clerks to extol his fair-minded and level-headed approach to the law, while mounting a $10 million TV, digital and grass-roots campaign targeting the most vulnerable Democratic senators.
His opponents have seized on Garland's treatment, Gorsuch's evasiveness, conservatives' refusal to disclose their campaign's donors, and a number of the judge's decisions which they say favored big business and government over the "little guy."
The dueling efforts have led to the same political chasm that divides Democrats from Republicans on other issues in the nation's capital, most recently the GOP's failed effort to repeal and replace Obamacare. But Supreme Court nominations used to be above the fray; the fights that blocked federal appeals court Judge Robert Bork in 1987 and nearly upended now-Justice Clarence Thomas in 1991 were rare exceptions.
This weekend, there were signs that some Democrats had grown weary of the impasse. Sens. Joe Donnelly of Indiana, Joe Manchin of West Virginia and Heidi Heitkamp of North Dakota —Democrats whose home states voted overwhelmingly for Trump last November — announced their support for Gorsuch, inching him closer to the 60-vote threshold needed to reach a final, up-or-down vote without a rules change.
"I believe that he is a qualified jurist who will base his decisions on his understanding of the law and is well-respected among his peers,” Donnelly said in a statement Sunday.
But other red state Democrats are going in the other direction. Sens. Claire McCaskill of Missouri and Jon Tester of Montana — Democrats up for reelection in 2018 from states that voted for Trump — announced they would support a filibuster. There still are a handful of senators who have not yet said which way they'll vote.
For the court, an end to the 14-month saga created by Scalia's death last Feb. 13 can't come soon enough. Its eight justices — four named by Republican presidents, four by Democrats — have deadlocked on four cases, reached purposefully modest rulings on others and avoided some altogether. A controversial religious liberty case pitting church versus state in Missouri was delayed until late April, apparently in hopes that a ninth justice would be on the bench by then.
And for all the machinations involving Obama and Garland, Trump and Gorsuch, both sides recognize that the battle over Scalia's seat likely pales compared to the next vacancy. Three justices are long past normal retirement age, including liberals Ruth Bader Ginsburg, 84, and Stephen Breyer, 78, and moderate Anthony Kennedy, 80. Their replacements will determine the direction of the high court for decades to come.
Contributing: Eliza Collins and David Jackson