One Senate Democrat makes the case for filibustering Neil Gorsuch

Sen. Jeff Merkley (D-OR) has a message for his Democratic colleagues in the Senate: Don’t let Mitch McConnell fool you.

On Wednesday afternoon, Politico reported that a handful of Senate Democrats are considering cutting a deal with the Republican majority leader to let Neil Gorsuch, Donald Trump’s nominee to the Supreme Court, through the Senate.

In exchange for that concession, Republicans would promise not blow up the rule allowing the Senate minority to filibuster Supreme Court nominations — giving Democrats the ability to filibuster the next, potentially more objectionable Trump Supreme Court pick.

Senate Minority Leader Chuck Schumer (D-NY) vowed to filibuster Gorsuch on Wednesday anyway, but it remains an open question if Republicans can find at least eight Senate Democrats who will help them cut off debate on the Supreme Court nominee.

Merkley thinks the deal is a mistake. In an interview Tuesday, he stressed that Senate Democrats should not trust that McConnell won’t simply repeal the filibuster rule next time around — even if Democrats agree to lay down their arms against Gorsuch now.

“We have to realize this is a losing strategy. That simply means Republicans can agree to change the rule on the next individual,” Merkley said in his basement office in the Capitol. “There are enormous consequences to confirming this extreme far-right nominee.”

A transcript of my conversation with Merkley, edited for length and clarity, follows.

Jeff Stein

From Obama’s appointment of Merrick Garland, until the Republicans in the Senate refused to give him a hearing, until Gorsuch’s confirmation hearing today, what has this whole Supreme Court fight taught you about American politics that you did not believe before?

Jeff Merkley

What is dramatically different is that we are dealing with a seat in which the Senate did not abide by its responsibilities under the Constitution to seat Obama’s nominee. That has not happened in our history.

It’s important to keep recognizing that this is a seat stolen from President Obama, put into a time capsule, and delivered forward to the next president. Republicans did that in the hope, with the dream, that they’d put forward a very different Court and put a very different judge up for confirmation than did President Obama.

If this succeeds, it’s a precedent that’s terribly destructive. Destructive to the Senate, because it will say, “We can refuse to do our job under the Constitution,” and destructive to the integrity of the Court. Because the Court has been rigged if this nomination of Neil Gorsuch is successful.

Jeff Stein

How has this changed your tenor of thinking about working with Republicans? How has that story changed your understanding of how the Senate works?

Jeff Merkley

When I came to the Senate in 2009, I heard that Mitch McConnell wasn’t interested in solving problems and was all about power and obstruction. And I didn’t really believe them.

I felt when you come to the Senate, you have a responsibility to address issues. In short order, I discovered that those stories if anything undersold the fact that Mitch McConnell is completely motivated by political purpose. He didn’t want to solve the problems facing America; he’d do anything possible to undermine the success of President Obama’s ability to be reelected.

The Senate looks so different than I saw as an intern for [Oregon] Sen. [Mark] Hatfield 41 years ago. So different than when I worked for Congress in the 1980s.

Jeff Stein

Do you think the rest of your colleagues on the Democratic side recognize that?

Jeff Merkley

They absolutely recognize what Mitch McConnell has done and how it’s undermined this institution. It was only a couple decades ago that everything in the Senate was done by simple majority.

The idea you’d require a supermajority to get something done was reversed for very rare occasions. That has completely flipped now. Everything now is a supermajority.

Jeff Stein

I hear you when you say that the Democratic caucus understands this is what McConnell is all about. But before the hearing, the Huffington Post came out with a story saying Democrats did not have the appetite for an all-out war on this. Some Democratic senators are saying, “We shouldn’t try to treat Grouch the way they treated Garland.” And there’s a recognition Democrats have to play nice.

Is that a mistake? Or is that an incorrect assessment of your colleagues’ attitude?

Jeff Merkley

When my colleagues say, “We’re not going to treat Gorsuch the way Republicans treated Garland,” what they’re saying is, “He’ll get a committee hearing; he’ll get vetted in committee.” Knowing Republicans have control, they know he’ll get to the floor. But that floor vote may well be a vote on closing debate. And my colleagues are not saying they are committed to closing debate.

Had the Republicans proceeded to hold hearings on Merrick Garland and put him on the floor and then voted on him — whether to table it or to defeat it, or so forth — that would have at least been in the realm of the Senate doing its job. But do not assume this means that people are going to be prepared to close debate, which is the more procedural way to describe what the filibuster is.

Jeff Stein

Let me phrase this more directly: Are you worried Democrats are going to vote to confirm Gorsuch?

Jeff Merkley

I believe Democrats will filibuster Gorsuch and will not vote to close debate. There is a concern. The concern is that some may say, as has been reported, “Why not strike a deal with Republicans? They agree to keep the rule in place, and we agree not to filibuster.”

We have to realize this is a losing strategy. That simply means Republicans can agree to change the rule on the next individual.

If folks say, “This one doesn’t really change the Court” — absolutely it does. We have a 4-4 Court; you can look at the 5-4 Court, it’s all anti-labor, anti-consumer, anti-environment decisions. And so there are enormous consequences to confirming this extreme far-right nominee.

Jeff Stein

When I talk to more moderate Democrats, they see their institutional prerogatives as being in tension with the policy outcomes you’re talking about. They see it as there being two axes to uphold — one that’s being a good senator, following the Senate rules and traditions; and two, fighting for the progressive policies they believe in.

Do you feel that for you or the rest of your colleagues, this second axis is taking over the first in importance?

Jeff Merkley

I think the two are compatible.

Senators who said, “Yes, we must have a committee hearing; we need to have a debate on the floor” — that’s the procedural side.

But that’s not incompatible with voting against closing debate, because the policy consequences of this far-right judge are enormous. I’ve listened to my Senate colleagues who two or three weeks ago were in neutral territory, who now reviewed case after case after case and met with, listened to, heard from Judge Gorsuch, and they’re saying, “I started out in the middle ground, but the more I find out he’s the furthest-right judge ever put before the Senate, that is not compatible with our Constitution” — well, these are my words at this point.

This is really a dynamic between the vision of a government that works of, by, and for the people and one that works of, by, and for the corporations. That’s what’s at stake here.