Donald Trump’s first quest for a Hard Eight began long before Neil Gorsuch’s two days as a Senate witness made it as easy as it’s ever going to be for the president to win his first big judicial bet.
That’s still not going to be that easy.
While politically plausible, it’s hardly a sure thing Trump will find eight Democratic senators willing to abandon their party on the first filibuster of the year.
In fact, by the end of last week not a single member of the minority had publicly committed to voting with the 52 members of the Republican majority to advance Gorsuch over the procedural hurdle the Democrats have promised to erect when the floor debate opens next week. Private lunches at the White House, phone calls from the president and more subtle backchannel entreaties have not yet produced any tangible reward, and time is starting to run short.
A surprisingly broad array of senators have been approached to gauge their openness to supporting Gorsuch, or at least voting to advance his nomination past the 60-vote cloture threshold to the ultimate “yes” or “no” roll call, where only 51 votes are needed.
The heart of the White House’s strategy has been to win over most of the nine Democrats facing difficult re-election prospects next year in states Trump carried in the fall. Beyond that, administration officials have eyed other veteran Democrats who supported the last Supreme Court selections made by a Republican president, George W. Bush more than a decade ago, or have otherwise iconoclastic voting records in the judicial wars that have raged for three decades before Trump last month proposed elevating Gorsuch from the federal court of appeals in Denver.
One way or another, the judge is going to become a justice before senators go home for spring break. But for a brand new president, Trump has been compelled to spend record sums of political capital in pursuit of incremental or elusive victories, so he has an acute need for an unsullied payoff on one of his bigger but seemingly not-all-that-risky wagers.
Trump would undeniably reap that reward if Gorsuch is confirmed without Majority Leader Mitch McConnell having to further eviscerate the heart of Senate culture, procedures in place since the 18th century empowering a reasonably large minority bloc of senators to deny the will of the majority.
But if getting Gorsuch on the court requires doing away with the filibuster for his and all future Supreme Court nominations, then Trump’s first victory for the history books will come with a big-time asterisk — noting how the 45th president, whose calling card has been willfully blowing up norms of politics and governance, somewhat fittingly got credit for exercising a “nuclear option” in Washington after less than a hundred days in the White House.
Given the collapse of legislation repealing and replacing the 2010 health care law — and the reality that Trump’s tax overhaul, infrastructure program, trade war, and border wall aspirations are on hold at least until the GOP health care bill’s fate is settled — Trump’s only play for preserving some governing momentum this spring is to come through for his conservative base by getting Gorsuch on the court.
And that is precisely why the task is not getting any easier.
The judge got to spend much of his nearly 20 hours before the Judiciary Committee last week underscoring his commitment to judicial independence, starting with his vow of immunity from any Trumpian interference, a tactic clearly aimed at comforting some of his potential Democratic backers.
But at the same time, Minority Leader Charles E. Schumer was making clear his new rationale for justifying the slow-walking of the confirmation process — the cloud of suspicion he describes as hanging over everything the president touches, now that the FBI has confirmed it is investigating possible collusion between the Trump campaign and Russia to influence last year’s election.
The New York Democrat all but openly implored his colleagues to stand with him against Gorsuch during one floor speech last week, because if “a Democratic president was under investigation by the FBI, the Republicans would be howling at the moon about filling a Supreme Court seat in such circumstances.”
Bringing down the wall
If that argument fails to carry the day, the first cracks in the party’s wall of resistance will surely come from members of “the deep red five,” the Democrats up for re-election next year in states that not only voted for Trump in 2016 but also went for Mitt Romney in 2012: Joe Manchin III of West Virginia, Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Claire McCaskill of Missouri and Jon Tester of Montana.
Even at this preliminary stage in the campaign cycle, all of their races are seen as toss-ups except for Tester, who’s perceived as having the slightest early edge. At a fundamental level, all of them could benefit from bucking the liberal Democratic leadership and standing with Trump on the first key Senate vote of his presidency, and perhaps the most consequential achievement for conservatism in his first year in office.
And going against the grain is already engrained in their political DNA. During the five years and three months since their current terms began, those five have strayed most often on roll calls that pitted most Democrats against most Republicans. On 832 votes since January 2013, Manchin has opposed the party line 28 percent of the time, Heitkamp 19 percent, Donnelly 18 percent, McCaskill 12 percent and Tester 10 percent. The Democratic average over that period is just 4 percent.
Five other Democrats are seeking new terms in 2018 in states that Trump carried four years after they supported President Barack Obama’s re-election. But only two from that group who are seen as vulnerable to defeat, Bob Casey of Pennsylvania and Bill Nelson of Florida, have just a hair-above-average 5 percent CQ Roll Call party opposition scores for their current terms.
Nelson, however, stands out for a different reason: He and Thomas R. Carper of Delaware are the only current Democratic senators who joined the GOP not only in voting to confirm Chief Justice John G. Roberts Jr. in 2005 but also in breaking the most recent filibuster mounted against a Supreme Court nominee, Justice Samuel A. Alito Jr. in 2006. (Carper signaled last week that a “yes” from him was highly unlikely, on cloture or confirmation.)
If the Democratic dam is going to break, early warning signals could be sounded when the Judiciary panel votes this week to recommend Gorsuch’s nomination to the full Senate.
Both the ranking Democrat, Dianne Feinstein of California, and Chris Coons of Delaware sounded at the hearing like they were inclined to vote against confirmation. But both are also among the Senate’s more prominent institutionalists, out to preserve the particular procedures and folkways that make the place unique among legislative bodies.
And to that end, both have expressed more dismay than most in their party at the diminishment of filibuster powers engineered four years ago by their own side, which muscled through elimination of any 60-vote test for all nominees — except for the Supreme Court.