WASHINGTON • Sen. Claire McCaskill is usually one of the more accessible members of Congress, a frequent tweeter and a semi-regular guest on MSNBC’s “Morning Joe.”
So when the Missouri Democrat told reporters she was not commenting on President Donald Trump’s nomination of Neil Gorsuch to the Supreme Court, it was news inside the D.C. media bubble. And there’s a reason for her guarded state. Multiple futures are at stake, including her own.
Here is the statement her office released to the Post-Dispatch about Gorsuch, a respected jurist from Colorado’s 10th Circuit Court of Appeals:
“I’m going to take a hard look at Judge Gorsuch’s views and record — specifically on the issues that confront Missouri’s families — and I look forward learning more about him. I believe any nominee to the Supreme Court deserves a confirmation hearing, and the chance to earn 60 votes on the Senate floor.”
There is a reason McCaskill mentioned “confirmation” hearing and “60 votes on the Senate floor.” It rolls two vital subjects — math and history — into the big dilemmas facing her and a handful of other Senate Democrats:
• The mention of a hearing is a barb at Republicans, who did not even schedule them for former President Barack Obama’s final Supreme Court nominee, Merrick Garland. His nomination flapped in the electoral gales of 2016, as Republicans in control of the Senate refused him a hearing, taking a chance that a new Republican president would get to replace the late Justice Antonin Scalia with another conservative. This is precisely what Gorsuch is to his Republican supporters.
But the Senate’s refusal of even a hearing for Garland remains a sore spot for Democrats, who have threatened — through Democratic Senate Leader Chuck Schumer — a filibuster to keep the seat open through the Trump administration.
• Democrats are caught between past, current and future considerations on how hard to fight this nomination. McCaskill’s 60-vote reference is to a Senate procedure that requires 60 votes to override a filibuster before taking a vote. Former Democratic Senate Leader Harry Reid decided to invoke the “nuclear option” for many of President Obama’s nominees — that is, suspend the 60-vote requirement so that a simple majority, or 51 members of the full Senate, could approve a presidential nominee despite a filibuster.
That “nuclear option” has now come back to bite Democrats as controversial Trump nominees are getting passed with narrow Senate majorities.
But that 60-vote threshold remains in place for Supreme Court nominee, at least for now. Republican hold 52 seats in the Senate, so the question is important for Gorsuch’s chances.
Because Gorsuch would not upset the Scalia-era court’s ideological balance of four liberals and four conservatives, with Ronald Reagan appointee Anthony Kennedy sitting in the middle, Democrats are faced with a strategic question:
Do they fight Gorsuch’s nomination with every tool, or do they save the filibuster for another day, more specifically for if an older liberal jurist, like Ruth Bader Ginsburg, may need to be replaced during Trump’s term in office? Then, the fight would be far more ideological, because the recent balance of the court would be in play.
If Democrats insist on filibustering Gorsuch, some Republicans have suggested they could again change the rules and use a simple majority to approve the next Supreme Court justice. With that precedent, the filibuster would be out of play during a future fight for a liberal judge’s replacement.
How does McCaskill fit into this?
Because of their 52-48 edge in the Senate, Republicans would need eight Democratic senators to overcome the 60-vote hurdle — and that’s if the GOP votes unanimously.
Right now, 10 Democrats are in the middle of this equation, including McCaskill. They share one combustible political profile: They face re-election battles in 2018 in states that Trump won, sometimes by wide margins. The president won Missouri by a landslide 18.5-percentage-point margin.
For them, a vote against a Trump Supreme Court nominee, especially if that nominee passes all the other fit-for-office requirements traditionally used to assess Supreme Court nominees, would rile up Trump supporters. It would be a major conservative rallying point against McCaskill, a self-described moderate whom Republicans will argue is really a liberal in disguise. A vote against Trump’s nominee would help them make that case.
Sen. Roy Blunt, R-Mo., described the Gorsuch nomination in a fundraising letter as the first big liberal challenge of Trump’s presidency.
If McCaskill votes to deny Gorsuch an up-or-down final vote in the Senate, she’ll run into criticism that she is not only against Trump’s nominee, but she is a hypocrite, because last year she demanded an up-or-down vote for Obama’s nominee, Garland.
In 2016 , McCaskill said in a YouTube video: “The Constitution says the Senate shall advise and consent. And that means having an up-or-down vote.”
Is a vote on sustaining a filibuster an “up-or-down vote?” That would be one of the arguments about whether McCaskill was being consistent if she voted to sustain a filibuster.
One could argue that Democrats were preventing the very “up-or-down” vote McCaskill called for last year. But one could also argue that gaining 60 votes historically has been a threshold to proceed for a final vote on Supreme Court justices.
But a vote for Gorsuch would expose McCaskill to charges on the left — whose support she’ll need to get re-elected — that she acquiesced to a lifetime appointment of a judge nominated by a president who is despised by the left.
While liberal senators have vowed to fight the nomination with everything they have, Sen. Dick Durbin, D-Ill., second in leadership in his party in the Senate, told reporters it’s “always the question” if some Democrats will break with their party.
“Those who are vulnerable, in states that went strongly for Trump, you know, we’ve got to talk to them, make sure we understand their position,” he said.
Sen. Joe Manchin, D-W.Va., who is in the same predicament as McCaskill, told CNN that his party should save filibuster threats for a liberal justice replacement.
“If we’re ever going to be back into the majority, you’re going to have to learn to work the moderates” like him, he said. “If not, (Democrats are) going to be in the super minority.”