Dem Leader Schumer Calls for Filibuster on Gorsuch Vote
After Senate hearings on President Trump’s Supreme Court nominee Neil Gorsuch ended on March 23, there is an increasing possibility of a filibuster led by Senate Democrats. If Democrats stage a filibuster (prolonged debate), then it will take a vote of 60 senators to invoke cloture (end debate.) Short of that, the Republican leadership can invoke what has been called the “nuclear option” — a change in Senate rules to allow the confirmation of Gorsuch to be accomplished by a simple majority vote of 51 senators.
Republicans currently hold a 52- to 48-member advantage in the upper house. If they can convince eight Democrats to join them in ending debate, a filibuster would not be successful.
Speaking from the Senate floor on March 23, Senate Minority Leader Chuck Schumer (D-N.Y.; shown) called for a filibuster to stop a vote on the Gorsuch nomination.
Schumer began his speech by speaking about only his own vote:
After careful deliberation, I have concluded that I cannot support Judge Neil Gorsuch’s nomination to the Supreme Court. His nomination will have a cloture vote. He will have to earn 60 voters for confirmation. My vote will be no and I urge my colleagues to do the same. To my Republican friends who think that if Judge Gorsuch fails to reach 60 votes we ought to change the rules, I say if this nominee cannot earn 60 votes, a bar met by each of President Obama’s nominees and George Bush’s last two nominees, the answer isn’t to change the rules. It’s to change the nominee.
During his speech, Schumer criticized what he perceived as Gorsuch’s “deep-seated conservative ideology.” But at least one example he offered to bolster his argument revealed much about the New York senator’s own deep-seated disregard for the Constitution. He said:
[Gorsuch’s] career and judicial record suggest not a neutral legal mind but someone with a deep-seated conservative ideology. He was groomed by the Federalist Society and has not shown one inch of difference between his views and theirs.
Schumer’s condemnation of Gorsuch for having views that are compatible with the Federalist Society indicate that he, himself, has very opposite views. This makes a brief examination of the society worthwhile.
The Federalist Society was founded simultaneously at three law schools — Yale, Harvard, and the University of Chicago — in 1982. The founders stated that such an organization was needed because: “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.”
The society defines itself as follows:
The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities.
Schumer did not explain which part of that mission statement he finds contrary to his views. Perhaps it is, “the separation of governmental powers is central to our Constitution.”
The society was started by a group of some of the most prominent conservatives in the country at the time, including Attorney General Edwin Meese and Solicitor General and Reagan Supreme Court nominee Robert Bork. Its membership has since included several Supreme Court justices, including the late Antonin Scalia, Chief Justice John G. Roberts, Clarence Thomas, and Samuel Alito.
The Federalist Society looks to Federalist No. 78 for an articulation of the virtue of judicial restraint, as written by Alexander Hamilton: “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature…. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body.”
Given its clearly constitutionalist goals, and the stature of many of it founding and present members, it is fair to surmise that Schumer does not so much have a problem with the Federalist Society as he has with the Constitution.
As noted above, to end the filibuster proposed by Schumer, Republicans must find eight Democrats to join them in voting to end debate. Their best hope for finding them is from the 10 Democratic incumbents facing reelection next year in states that Trump won. One of these states is Pennsylvania, but Sen. Bob Casey (D-Pa.), who faces a tough reelection battle next year, has already said he will not vote for Gorsuch. Casey’s announcement drew an immediate reaction from Brian Rogers, executive director of the conservative political action committee America Rising Squared, who said in a statement:
“By opposing an up-or-down vote on Judge Gorsuch, it is clear that Senator Casey cares more about appeasing far-left activists threatening his reelection this year than he does the views of most Pennsylvanians.”
However, a more moderate Democrat, while not saying how he will vote on Gorsuch’s confirmation, Sen. Joe Manchin (D-W.Va.) said during an interview with Yahoo Global News Anchor Katie Couric on March 23 that he would not join a Democratic filibuster of the nominee.
Manchin, who said he’s “not a big filibuster guy to begin with,” said that Gorsuch should get an up-or-down vote unless a senator has an actual, strong concern about him.
“How do you preserve the Senate? How do you preserve the input that the minority should have? Because what goes around comes around,” he said. Manchin continued:
I don’t expect, as a Democrat, that he’s going to appease a lot of Democrats because of his philosophical beliefs. But guess what? The Democrats, we didn’t win the presidential election so you don’t expect to a get a center-left [Supreme Court justice].
A March 24 article from Fox News offered an interesting perspective on the Democrats’ filibuster threat. The writers, one a law professor at the University of California School of Law at Berkeley and the other a law professor at the University of Virginia, said that “Schumer’s promise to invoke a filibuster signals the success, not the failure, of Judge Neil Gorsuch’s Supreme Court nomination.”
His reason for forming that conclusion?
If Democratic Senators had made any progress in attacking Gorsuch’s qualifications, record, or judicial philosophy, they could persuade their Republican colleagues to reject Gorsuch. With 48 Senators in their caucus, Democrats would only need persuade three Republicans to join them.
But they cannot. Anyone watching the confirmation hearings — and between us we have watched all of them going back to the ones for Antonin Scalia, whose untimely death created the current vacancy — can tell that the Democratic Senators had already thrown in the towel.
The writers concluded:
The sense that Gorsuch is going to be confirmed is nearly universal, making these hearings as exciting as a Soviet show trial. Some people are going to pay attention. But most already know the ending.
Sen. Dianne Feinstein, D-Calif., a liberal Californian whose opposition to virtually everything President Trump is trying to accomplish is well known, was caught this week in her own “gotcha” question to U.S. Supreme Court nominee Judge Neil Gorsuch.
Gorsuch appeared this week before the Senate Judiciary Committee, which will decide whether to put his nomination before a full vote of the Senate.
The details on Feinstein’s backfire come from the Second Amendment Foundation, or SAF, the oldest and largest tax-exempt education, research, publishing and legal action group focusing on the right to bear arms.
They cited Feinstein’s challenge to Gorsuch to acknowledge that the late Justice Antonin Scalia, whose seat Gorsuch would occupy, wrote that “military” guns could be banned.
Her question: “Justice Scalia also wrote that, ‘Weapons that are most useful in military service, M-16 rifles and the like, may be banned’ without infringing on the Second Amendment. Do you agree with that statement that under the Second Amendment weapons that are most useful in military service … may be banned?”
But SAF said the quote was taken out of context “in an attempt to legitimize her gun ban agenda.”
“It is unfortunate that Sen. Feinstein had to resort to this cheap parlor trick to make it appear that the late Justice Antonin Scalia would be okay with a ban of modern sporting rifles,” said SAF founder and Executive Vice President Alan M. Gottlieb. “We’ve carefully reviewed her question to Judge Gorsuch and the actual text of the ruling, which was written by Justice Scalia.”
SAF said that what Scalia actually wrote was: “It may be objected that if weapons that are most useful in military service – M-16 rifles and the like – may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”
Gottlieb said it “is clear to us that Sen. Feinstein quoted Heller out of context and she was playing ‘gotcha’ with Judge Gorsuch on the issue of banning the most popular rifle in America today.”
“By trying to paint Judge Gorsuch into a corner that exists only in her mind, Sen. Feinstein did a disservice to the hearings, the Supreme Court’s ruling, and the Constitution, itself,” he said.
Most Democrats stated before the hearings that they will oppose Gorsuch, although those up for re-election in states won by the president will be under pressure to vote for him.
Even if every Democrat votes against Gorsuch, who has been given a top rating by the American Bar Association, there still is a procedural way the 52 members of the GOP majority in the Senate could confirm him.
Under the current Senate rules, 60 votes are required to end debate, meaning the minority party can prevent an up-or-down vote by filibustering. During Barack Obama’s tenure in the White House, then-majority Democrats changed the rule regarding lower-court judges and Cabinet nominees, requiring only a simple majority to end debate.
The precedent opens the door for the Republicans to do exactly the same thing if they choose.
In a commentary at FoxNews.com, two law professors wrote as the four days of hearings concluded that the Democrats appeared to have lost their fight against Gorsuch.
“Contrary to media reports Thursday, Senate Minority Leader Chuck Schumer’s promise to invoke a filibuster signals the success, not the failure, of Judge Neil Gorsuch’s Supreme Court nomination,” wrote John Yoo of the University of California at Berkerley and Saikrishna Bangalore of the University of Virginia.
“If Democratic senators had made any progress in attacking Gorsuch’s qualifications, record, or judicial philosophy, they could persuade their Republican colleagues to reject Gorsuch. With 48 Senators in their caucus, Democrats would only need persuade three Republicans to join them,” they said.
“But they cannot. Anyone watching the confirmation hearings – and between us we have watched all of them going back to the ones for Antonin Scalia, whose untimely death created the current vacancy – can tell that the Democratic senators had already thrown in the towel. They have spent most of their time attacking Donald Trump for matters that have almost nothing to do with Gorsuch, or criticizing their Republican counterparts for refusing to confirm President Barack Obama’s nominee, Merrick Garland, for the same seat a year ago.”
John Yoo and Prakash said the “sense that Gorsuch is going to be confirmed is nearly universal, making these hearings as exciting as a Soviet show trial.”
“Some people are going to pay attention. But most already know the ending.”