WASHINGTON ― A group of Democratic senators is contemplating trying to cut a deal with Senate Majority Leader Mitch McConnell (R-Ky.): giving him an up-or-down vote on Supreme Court nominee Neil Gorsuch if he restores the 60-vote requirement for advancing district and circuit court nominees.
That’s just one proposal being floated as part of ongoing conversations between more than half a dozen Senate Democrats, according to two Democratic aides familiar with the talks. Another proposal is offering to confirm Gorsuch in exchange for a commitment from McConnell to preserve the 60-vote threshold just for future Supreme Court nominees, a source told The Huffington Post, and which Politico also reported on Wednesday.
So far, the talks remain very preliminary. Leadership isn’t a part of the group exploring such an arrangement, and there haven’t been any conversations with McConnell himself or other GOP senators. Instead, it is more of an organic dialogue among rank-and-file Democrats looking ahead to Gorsuch’s confirmation vote in the next two weeks.
But the objective among these Democrats is to preserve the filibuster ― the party’s only real leverage while in the minority, with the fear being that McConnell could remove it if Gorsuch’s nomination is blocked. The thinking among the group is that McConnell will end up just shy of the 60 votes he needs to advance the Gorsuch nomination, with all 52 Republicans likely to vote for him and a handful of moderate Democrats likely to join. McConnell has hinted that he’s prepared to nix the filibuster rule altogether if he can’t hit 60 votes. That would mean that going forward, it would only take 51 votes to advance a Supreme Court nominee.
Seeking to salvage something out of the Gorsuch vote, Democrats could give McConnell ― and President Donald Trump ― a conservative court pick while preserving Senate rules for future Supreme Court nominees and potentially enhancing their leverage over lower-court nominees.
“This is forcing the issue,” one Democratic aide said of the conversations around the filibuster. “I mean, shit, we lost.”
Still, it’s a risky proposal. Progressive groups are already howling at the prospect of any Democrat supporting Gorsuch, and the notion that some Democrats would work with McConnell to help him get confirmed could spark backlash. Some Democrats have real concerns about Gorsuch’s conservative background, too. Meanwhile, some Republicans won’t want to restore the filibuster rule for district and circuit judicial nominees, both out of spite for Democrats eliminating those rules in 2013, and because they now have the opportunity to fill dozens of court vacancies.
McConnell spokesman Don Stewart dismissed the idea that Democrats have much leverage over the process.
“Sen. McConnell has said repeatedly that Judge Gorsuch, who even Democrats believe is well qualified, will be confirmed,” Stewart said in a statement. “If Senate Democrats want to avoid having to go on record in an unprecedented filibuster of a well-qualified Supreme Court nominee, all they have to do is not filibuster the well-qualified Supreme Court nominee. You don’t need to have a deal to do the right thing.”
But several Democrats believe that the future of the filibuster could be decided in the next couple weeks, and they are gaming out ways to preserve it. Sen. Chris Coons (D-Del.), a member of the Judiciary Committee, is among them. He said last year that he regrets that his party eliminated that rule for lower-court judges.
“He’s been open about his concern for preserving the filibuster and the impact this process may have on the Senate, and he has talked with both Republican and Democratic senators about that,” said Coons spokesman Sean Coit. “At the same time, he remains concerned about the approach Judge Gorsuch would bring to the Court, and he’s taking the ongoing hearings very seriously.”
Democrats have other fears about McConnell getting rid of the filibuster. For one, it would leave just one filibuster rule left in the Senate, for legislation, and that would become a prime target for elimination too. It would also make it easier for Trump to potentially fill more Supreme Court seats. Three of the justices on the court are in their late 70s or in their 80s, and none are particularly conservative. While Gorsuch would replace a fellow conservative, the late Antonin Scalia, any future Trump nominee would tilt the political leaning of the court to the right.
Both of those scenarios would benefit Republicans in the short term but render them just as powerless as Democrats when they end up back in the minority again. That scenario, and a nod to preserving the norms of the Senate, are the points some Democrats hope to turn into a pitch to their GOP colleagues on a filibuster deal as they head into Gorsuch’s vote.
“I’m sort of baffled by people who seem to view this confirmation in a vacuum,” added the Democratic aide. “Even if it just ends up being a candid conversation like, ‘Guys, what are we doing to this institution?’”