He won’t vote for Gorsuch in the final confirmation vote, he stresses, but no one cares about that. That vote requires a simple majority, and obviously all 52 Republicans will vote yes. The big vote, as always in the Senate, is the cloture vote. If Democrats hang together there, as Schumer has been threatening that they will, then the GOP will have to nuke the filibuster. They probably have the votes to do that, but there’s a shred of mystery. And even if it happens, it’s a momentous break with tradition. Supreme Court confirmations will never be the same.
Now here comes one Democrat suggesting that the crisis might be averted. Annnnnnd … it’s not the Democrat whom you’d guess. Holy confirmations, Batman!
The most senior senator, Leahy retains a vision for the chamber as one that promotes bipartisanship and compromise. Leahy has long expressed concern about the politicization of judicial nominees, and he does not support Senate Minority Leader Chuck Schumer’s decision to filibuster the Gorsuch nomination, which would effectively block a full Senate vote.
“I am not inclined to filibuster, even though I’m not inclined to vote for him,” Leahy said…
“I do think the end of the filibuster hurts everybody,” Leahy said. “I was very reluctant to see us use the nuclear option, thought I don’t think we would have seen any of President Obama’s judges go through without it.”…
“If politics continues to pervade judicial nominations, Americans will lose faith in the judiciary,” Leahy said. “They have already lost faith in the presidency and the Congress, there’s not much trust left in government.”
Leahy’s spokesman rushed to say afterward that he hasn’t taken a definitive position on cloture yet, but the senator’s hesitation is a strong nudge to junior Democrats to ignore Schumer and go their own way on filibustering Gorsuch. Leahy’s been in the chamber for more than 40 years (elected when he was all of 35 years old) and, unlike most of the other gettable Democrats on cloture, he comes from a deep blue state. In theory, the left could punish him for crossing them on Gorsuch by primarying him, but (a) he doesn’t face voters again until 2022, (b) at 76 years old, it’s an open question if he’ll run again, and (c) Leahy is such an institution in Vermont that he typically wins his primaries with upwards of 90 percent of the vote. He’s probably primary-proof. And if he opts to vote yes on cloture, that means suddenly all sorts of red-state Democrats will have cover from an elder statesman on the left in defying Schumer. By Politico’s count, there are a quite a few of them out there, too:
Beyond Manchin, Kaine and Tester, at least 10 other Democrats have yet to weigh in on a potential filibuster of Gorsuch. Sens. Michael Bennet of Colorado, Amy Klobuchar of Minnesota, Angus King (I-Maine), Claire McCaskill of Missouri, and Mark Warner of Virginia declined to answer questions about the nominee on Thursday.
Also considered potential gets for the Gorsuch nomination, at least on opposing a filibuster, are Democratic Sens. Chris Coons of Delaware, a member of the Judiciary Committee; Sen. Maggie Hassan of New Hampshire, who met with the nominee last month; and three others who face reelection battles next year: Sens. Joe Donnelly of Indiana, Bill Nelson of Florida and Heidi Heitkamp of North Dakota.
If Leahy is a yes on cloture, all McConnell needs is seven of those remaining 13 to get this done. Easily doable, especially with a senior senator like Leahy blazing the trail.
A not-so-crazy conspiracy theory for you: What if Schumer put Leahy up to this? No minority leader likes to see his authority undermined, but Schumer’s in a terrible bind here. If he doesn’t show the left that he’s willing to avenge Merrick Garland by using every obstructionist trick at his disposal, progressives will scapegoat him and turn him into a lightning rod for their anger over Trump. In fact, they already have. If, on the other hand, the caucus follows his lead and successfully filibusters Gorsuch, it’ll be a fiasco — McConnell will nuke it, Gorsuch will be confirmed anyway, and the left will have lost their last bit of procedural leverage over an eventual Trump nominee for Ruth Bader Ginsburg’s or Stephen Breyer’s seat. A filibuster now would be the purest strategic idiocy and Schumer knows it. Solution, then: Endorse the filibuster in his role as minority leader while nudging Leahy, a Senate institution and Judiciary Committee veteran who almost certainly can’t be defeated in Vermont, to lead the rebellion instead. Now, when Manchin and Bennet and McCaskill et al. need to justify their votes in favor of cloture, they can point to Leahy and say, “Sen. Leahy’s judgment carries such heavy weight with me, especially in terms of getting politics out of judicial nominations, that I feel obliged to join him in this vote.” Leahy then becomes the lightning rod. But so what? He’s immune from this sort of political lightning. He’ll be just fine, and so will all of the red-state Dems who vote for cloture along with him once the left realizes that they’re in no positional electorally to further weaken their chances in 2018 by primarying any of them over their Gorsuch votes.