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Senate Democrats In Political Quagmire Over Supreme Court Nomination

Feb 2, 2017
Originally published on February 2, 2017 8:36 pm

In Washington, D.C., the cognoscenti confidently predict that Supreme Court nominee Neil Gorsuch will be easily confirmed. But both supporters and opponents are chastened by the predictors' embarrassingly wrong prognostications over the past year. And that is presenting Senate Democrats in particular with a strategic dilemma.

Ron Klain has been a key Democratic player in four Supreme Court confirmations, first overseeing two Republican nominations in the early 1990s as a top staffer for then-Sen. Joseph Biden — who chaired the Senate Judiciary Committee — and later promoting two of President Bill Clinton's Supreme Court nominees while serving as a top White House aide.

A filibuster is likely, and likely futile

Klain expects that most Democrats will end up voting against Gorsuch. But the strategic question is whether the Democrats will try to block the nomination with a concerted filibuster, which takes 60 votes to break.

"The reality is there's going to be a filibuster," Klain says. "It takes only one senator to start a filibuster, only a handful to sustain it."

His guess is that there are more than a handful who will launch a filibuster, and everyone will have to wait to see where the votes fall.

"I think this is Round 1 of a 15-round fight," Klain says. "We'll see what Round 15 looks like."

Future Senate and Supreme Court seats could be at risk

A filibuster could cost the Democrats dearly if Republicans decide to exercise what's called the "nuclear option" and get rid of the filibuster altogether for Supreme Court nominees.

"What they lose is, this is their one chance to make this into a big issue, to get attention," observes Richard Hasen, professor of law and political science at the University of California, Irvine.

He suggests it might be smarter to save the political clout for the time when any of the court's three oldest justices — 83-year-old Ruth Bader Ginsburg, 80-year-old Anthony Kennedy, and 78-year-old Stephen Breyer — might retire. If any of them were to leave during the Trump administration, he notes, that "would really change the balance of power on the court."

Klain, the Democratic operative, acknowledges that the calculus is complicated.

"I do think that the level of toxicity and anger among rank-and-file Democrats is at an all-time high," he says. "[The American public has] been ahead of the senators every step along the way here in the last couple of weeks.

"We've seen, for Cabinet nominees — some who seemed like they were going to be easy to get confirmed, have large numbers of Democratic voters — we've seen that vote tally peel back every day," he says.

Hasen, who closely follows social media, agrees the danger for Democrats is real.

"If [Senate Democratic leader Charles] Schumer and the other Democrats roll over, what is potentially likely to happen is that there will be some Democrats on the left who will try to primary these senators — who will try to act like a Tea Party on the left and try to enforce some ideological discipline on senators who are not willing to take a broader stand," Hasen says.

That could have dire consequences for Democratic numbers in the Senate in the election two years from now. In 2018 Republican incumbents are defending only eight Senate seats, while Democrats are defending 23 — 10 of them in states carried in the 2016 election by Donald Trump.

"This is going to put them in a very difficult spot," Hasen continues. "It could be that by the time we get the 2018 elections, the Democrats could lose more seats, and will have even less power in the Senate than they have now."

That, he says, could mean "now is the time to take a stand, while you still have some powder left to use."

Neal Katyal, who served as the government's chief advocate in the Supreme Court during the Obama administration, says he understands Democratic rage regarding the GOP's unprecedented refusal for almost a year to even consider Obama's nominee for this very Supreme Court seat.

"But in this world we are in, what I care most about is a judge who's going to be independent from the executive and call it like he sees it," Katyal says. "And that's how I see Judge Gorsuch."

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RACHEL MARTIN, HOST:

Here in Washington, the conventional wisdom is that Supreme Court nominee Neil Gorsuch will be easily confirmed. But if 2016 proved anything, it's that conventional wisdom is not always accurate. So Senate Democrats find themselves in a tough spot - how hard do they fight what many see as a foregone conclusion? NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: Ron Klain has been a key Democratic player in four Supreme Court confirmations - two as a top staffer for then Senator Joseph Biden on the Senate Judiciary Committee when it oversaw two Republican nominations and two as a top White House aide promoting President Clinton's Supreme Court nominees. He expects that most Democrats will end up voting against Gorsuch, but the strategic question is whether the Democrats will try to block the nomination with a filibuster, which takes 60 votes to break.

RON KLAIN: The reality is there's going to be a filibuster. It takes only one senator to start a filibuster, only a handful to sustain it. And I think there are more than that number who will launch a filibuster. And then we'll see where the votes are. So I think this is round one of a 15-round fight, and we'll see what round 15 looks like.

TOTENBERG: But Professor Richard Hasen observes that if Republicans decide to exercise what's called the nuclear option and get rid of the filibuster altogether for Supreme Court nominees, that could cost the Democrats dearly.

RICHARD HASEN: What they lose is this is their one chance to make this into a big issue to get attention. It might be better saving it for a time if, during the Trump administration, we have either Justice Ginsburg or Justice Breyer or Justice Kennedy, the three oldest justices, one of them leaving the court. If that happens, that would really change the balance of power on the court.

TOTENBERG: Democrat Klain acknowledges that the calculus is complicated.

KLAIN: But the level of toxicity and anger among rank-and-file Democrats is at an all-time high. And people have been ahead of the senators at every step along the way here in the past couple weeks. And we've seen for Cabinet nominees - some who seemed like they were going to be, you know, easy to get confirmed, have large numbers of Democratic votes - we've seen that vote tally peel back every day.

TOTENBERG: Hasen, who closely follows social media, agrees the danger for Democrats is real.

HASEN: If Senator Schumer and the other Democrats roll over, what is potentially likely to happen is that there will be some Democrats on the left who will try to primary these senators who will try to act like a tea party on the left and try to enforce some ideological discipline on senators who are not willing to take a broader stand.

TOTENBERG: And that could have dire consequences for Democratic numbers in the Senate in the election two years from now. In 2018, Republican incumbents are defending only eight Senate seats while Democrats are defending 23 seats, 10 of them in states carried in the 2016 election by Donald Trump. Again, Professor Hasen.

HASEN: And so this is going to put them in a very difficult spot. It could be, by the time we get to the 2018 elections, the Democrats could lose more seats and will have even less power in the Senate than they have now. He could argue that means now's the time to take a stand while you still have some powder left to use.

TOTENBERG: Neal Katyal, who served as the government's chief advocate in the Supreme Court during the Obama administration, says he understands Democratic rage over the GOP's unprecedented refusal for almost a year to even consider Obama's nominee for this very Supreme Court seat.

NEAL KATYAL: But in this world we are in, what I care most about is a judge who's going to be independent from the executive and call it like he sees it, and that's how I see Judge Gorsuch.

TOTENBERG: Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF BAYONNE'S "OMAR") Transcript provided by NPR, Copyright NPR.