It's Not About Gorsuch, It's About the Democrats

The largest political bloc in the United States, "radical independents" (discussion here; click to enlarge).

by Gaius Publius

Update: Various news outlets are reporting that because Chris Coons now says he'll support the filibuster, the Democrats have 41 votes and can block the nomination, at least until filibuster rules are changed. The Hill:

Sen. Chris Coons (D-Del.) announced on Monday that he will oppose President Trump's pick on a procedural vote where he will need the support of eight Democrats to cross a 60-vote threshold to end debate on Gorsuch. Coons is the 41st Democrat to back the filibuster.

“Throughout this process, I have kept an open mind. … I have decided that I will not support Judge Grouch's nomination in the Judiciary Committee meeting today," Coons said.

"I am not ready to end debate on this issue. So I will be voting against cloture," Coons said, absent a deal to avoid the nuclear option. [emphasis added]

The Hill adds, "Unless one of the 41 Democrats changes their vote, the filibuster of Gorsuch will be sustained in a vote later this week." Note the qualification (bolded) next to the Coons quote. That's the writer's voice, but it reads like a paraphrase from Coons. From this, it seems likely they're still negotiating to "preserve the filibuster," as the Democrats might put it. We won't know until the votes are cast how things actually do or did play out.

Bottom line first — Democrats are in luck. They now have a fourth opportunity to make a new first impression on voters — especially those in Rust Belt and economically suffering states — yet another opportunity to bring disaffected voters back into the fold in 2018 and 2020.

The first attempt was the nomination of Hillary Clinton in an obvious, 2008-style "change election" year, despite the fact that an actual "change" candidate, Bernie Sanders, was an option they could have chosen. Clinton ran as "Obama's third term"; she won where Democrats and the economy were strongest — the coastal states of California and New York, for example — and she lost where Democrats used to be strong but the economy was terrible — Michigan and Wisconsin, for example, which she also lost in the primary to Bernie Sanders, a telling sign.

The second attempt was, in the aggregate, the numerous, terrible votes on the numerous, terrible Trump nominees — like torture-loving Mike Pompeo as director of the CIA, who passed the Senate 66-32-2; utterly unqualified Nikki Haley for UN Ambassador, who passed 96-4; anti-public school evangelist Betsy DeVos for Education Secretary, who passed her cloture vote 52-48 before being confirmed on a 50-50 vote; or perhaps most significantly, Exxon CEO Rex Tillerson for Secretary of State, who passed the Senate 56-43-1. Mark Warner and Angus King were among the Democrats voted for Tillerson; Chris Coons didn't vote.

The third attempt was was the proxy battle between the Obama forces, who wanted their man, Tom Perez, to be named DNC chair ahead of Sanders-supporter Keith Ellison. Perez won, with Obama, among others, actively whipping for him (our write-up of that battle is here).

Now comes the highly pro-corporate, pro-religious-rights nominee Neil Gorsuch to fill the vacant Supreme Court justice seat. As you will read below, according to Mitch McConnell, he's going to be nominated one way or the other — with the filibuster in place or with it removed.

The only real question is about the Democrats. What will they do — permit enough of their members to "preserve the filibuster" (until the next time Republicans threaten it) by voting the interests of their donors and passing Gorsuch with Democratic support, or show some Party spine in defeat?

And the only real issues at stake are the 2018 and 2020 elections. Will the Democratic Party, in the aggregate, begin to look like a party the largest voting bloc in the country — "radical" (pro-change) independents — can support? Or will they continue to look like the party of only the comfortably well off?

We're about to find out.

The Gorsuch Nomination — All You Need to Know

As of the latest reports, on Friday, April 7, just prior to a two-week recess, the full Senate will take up the nomination of Neil Gorsuch for justice of the Supreme Court, filling the vacancy left by the death, more than a year ago, of Antonin Scalia on February 13, 2016. (As anyone following this story knows, then-President Barack Obama had shortly thereafter nominated Merrick Garland for the seat, but in an unprecedented move, the Senate under Mitch McConnell refused even to hold hearings, in a apparent — or obvious — attempt to hold the nomination for a potential Republican president after the November 2016 election.)

Because of the makeup of the current Senate — 52 Republicans, 46 Democrats, 2 Independents (Bernie Sanders and the "centrist" Angus King) — Republican have enough votes to confirm Gorsuch (51 votes needed), but not enough to break a filibuster on the vote to close debate and proceed to a vote to confirm (60 votes needed).

This means that the Republicans, if they vote as a bloc, need eight Democrats/Independents to vote with them to close debate (the so-called "cloture" vote).

What to watch for — The cloture vote will determine whether Gorsuch will be confirmed (unless, as noted below, the Republicans vote later to kill the filibuster rule for SC nominees). Thus, any Democrat who votes Yes on cloture but No on Gorsuch is a hypocrite — is merely pretending to be opposed after helping to settle the matter the other way.

That's true of almost all Democrats when it comes to cloture votes, by the way. A vote to close debate, when a bill or nomination could be stopped, followed by a "principled" vote against a bill or nomination means the vote to oppose is a "show vote" only.

The Democratic "Deal" and the Democratic "Filibuster"

In response to the possibility of a Democratic filibuster of Gorsuch, McConnell has threatened a so-called "nuclear option" — that the Senate would change the rules if a filibuster succeeds in a way that would remove the 60-vote threshold for cloture votes on Supreme Court nomination.

Most recently, we find this:

President Donald Trump's Supreme Court pick, Neil Gorsuch, will be confirmed this week one way or the other, Senate Majority Leader Mitch McConnell said on Sunday, suggesting he'll trigger the so-called nuclear option if Democrats attempt to filibuster Gorsuch.

"Judge Gorsuch is going to be confirmed," McConnell said on "Fox News Sunday." "The way in which that occurs is in the hands of the Democratic minority."

McConnell did not say directly that he would trigger the nuclear option, in which the chamber's rules would be changed to allow the Senate to cut off filibusters on Supreme Court nominations with a simple majority, instead of the current 60-vote threshold. But he said the week "will end with [Gorsuch's] confirmation" whether or not Democrats attempt to filibuster him.

Democrats say that if the filibuster remains in place, they have the votes to torpedo Gorsuch’s nomination.

“It’s highly, highly unlikely that he’ll get to 60,” Senate Minority Leader Chuck Schumer said on NBC’s “Meet the Press.”

As the Gorsuch nomination moved through the Republican-controlled Senate, news leaked that some Democratic senators were considering offering a deal to Republicans — "we'll vote for Gorsuch if you don't eliminate the filibuster for the next Supreme Court nominee.

Since first hearing about the threat to the filibuster, "some" Democrats were said to be considering a deal that would preserve the filibuster (until it was next threatened, it must be said) in exchange for Democratic votes for Gorsuch. The uproar among the public against that was immediate.

In apparent response, Senate Democratic leader Chuck Schumer promised a filibuster — meaning, he announced his own intention to vote no on Gorsuch, and he "asked" other Democrats to do the same. (Those details are here: "Senate Democrats Will Filibuster Gorsuch...Maybe".)

The Decision for Democrats: Well-Paid Minority or "Party of the People"? 

Keep in mind these things:

• The Democrats need millionaire, billionaire and corporate money to stay "in business," since they've rejected Bernie Sanders' fundraising model.
   
• Big money and pro-corporate forces really really want a strong pro-corporate majority back on the Roberts Supreme Court.
   
• Gorsuch will likely be confirmed regardless of what the Democrats do.
   
• If Democrats help break the filibuster, Republicans will claim the confirmation was "bipartisan," and corporate Democrats like Schumer can go into private donor meetings and claim his party helped "deliver."

So what the Democratic Party vote on Gorsuch comes down to is a public show of support for one of two constituencies — either the public and their interests, or corporate and big money donors and their interests. The public is watching — which puts Democratic Party prospects at risk; and the donors are watching — which puts Democratic Party funding at risk.

Which leads straight into the Gorsuch vote on April 7. What will the Democrats do?

The Gorsuch Whip List

According to The Hill, here's where we stand with Gorsuch.

    ▪ Three votes to break the filibuster and approve the nomination — Joe Donnelly (IN), Joe Manchin (WV), Heidi Heitkamp (ND). (Update: Michael Bennet will vote to end the filibuster.)

    ▪ 38 votes to block the nomination, including the surprising Claire McCaskill (MO), but perhaps not including Richard Blumenthal (see below). Most of these say they will also support the filibuster, but not all.

    ▪ Five votes "undecided" in the vote to approve the nomination — Michael Bennet (CO), Chris Coons (DE), Angus King (Maine), Jon Tester (VT), Mark Warner (VA). Tester was in Senate Democratic leadership; he's the outgoing chair of the DSCC. Mark Warner is in leadership now and a Schumer ally. This may indicate how strongly (or weakly) Schumer is whipping against Gorsuch. Watch Bennet, Coons and King, for example.

CNN's count adds Richard Blumenthal (CT) as undecided in approving Gorsuch and includes Ben Cardin (MD) and Patrick Leahy (VT) as undecided in supporting the filibuster. (Yes, Leahy, who was accommodating to so many Bush II lower court appointees.)

    ▪ Two votes "unclear" — Dianne Feinstein (CA), Bob Menendez (NJ). "Unclear" may mean "negotiating for favors" if the vote is close and one of the two sides can give them something they want. (CNN has Feinstein supporting the filibuster and also opposed to the nomination.)

If you're counting, the three firm yes votes and the five, six or seven undecides alone could break the filibuster.

The Hill, of course, is maintaining the pretense that Democrats in red states can't win without acting like Republicans. Note that Trump did win in red states by not acting like a Republican. Trump won, if you've forgotten, by acting like ... Bernie Sanders.

A New First Impression, or a Permanent, Well-Paid Minority?

Remember, if the Democrats don't manage one of the days to make a new first impression on voters, they'll be a permanent electoral minority, albeit very well paid for their efforts. "Permanent" means that their minority will last until one of these nearly inevitable events occur...

• An economic revolt against the ruling elite far angrier than we saw in 2008 and 20016, or
• A widespread, panicky recognition that we're really really screwed on climate 

...both of which will make the country nearly ungovernable and elections, frankly, moot.

And from an independent voter's perspective, if Democrats don't care if they are always in the minority, regardless of their words, why vote for them? It's a vicious cycle, downwardly spiraling. 

Will a successful cloture vote slow the flow of big-donor money to the Democratic Party? If not, they can filibuster freely, knowing nomination is secure in any case.

Or will a failure to block the nomination be enough to show both the donors and the public that Democratic Party hearts are "in the right place" after all — even if those two "right places" are simultaneously opposite to each other?

What will Democrats do? I can't wait to find out.

GP