Neil Gorsuch testifies before the Senate Judiciary Committee on his nomination to be an associate justice of the Supreme Court during a hearing on March 21. | Getty Gorsuch needs a straight flush to beat filibuster

Senate Democrats on Tuesday left Judge Neil Gorsuch with two roads to the Supreme Court: winning over all of the party’s remaining swing votes, or relying on the so-called nuclear option.

The five Democratic senators up for reelection next year in states where President Donald Trump won by single digits have all endorsed a filibuster of Gorsuch, while the five facing voters next year in states Trump won by double digits all remain undecided. Gorsuch would have to carry all five of those fence-sitters to overcome a Democratic filibuster — plus his home-state Sen. Michael Bennet (D-Colo.), Maine independent Sen. Angus King, and another more surprising senator.


But after liberals raised the pressure on Democrats to oppose Gorsuch and the National Rifle Association targeted four red-state Democrats with $1 million in pro-Gorsuch ads, Trump’s nominee ended the day with his chances at beating a filibuster lower than ever.

“The issue is whether Gorsuch has earned 60 votes, which according to our Republican friends, has always been the standard for a significant decision by the Senate — and at present, I don’t think they’re even close,” liberal Sen. Sheldon Whitehouse (D-R.I.) told Politico. “So I don’t see this as being a make-or-break determination for any of those red-state Democrats.”

On Tuesday alone, nine Democrats came out against the nominee — although one, Maryland Sen. Ben Cardin, has not clarified his decision on a filibuster. The flurry came as liberal activists dug in their heels further ahead of a series of nationwide protests that the anti-Gorsuch “People’s Defense” coalition has planned for Saturday.

The liberal coalition, led by abortion-rights group NARAL Pro-Choice America, has scheduled rallies in Las Vegas, Seattle, Denver, Milwaukee, San Francisco, New York and Washington, with more cities rolling out later this week. Two more coalition groups, MoveOn.org and the Progressive Change Campaign Committee, are taking aim at Sen. Joe Manchin (D-W.Va.) over his resistance to blocking a simple-majority vote on Gorsuch.

“Any Democratic senator who doesn’t filibuster Gorsuch hurts not only their own standing, but makes the entire party look weak — dampening enthusiasm among the grass roots and swing voters Democrats need to fire up in 2018,” PCCC spokeswoman Kait Sweeney said in a statement.

The intensifying push from the left and right “makes it harder and harder” to avoid a potential clash over changing the Senate rules to end the filibuster for Supreme Court nominees, Sen. Chris Coons (D-Del.) said in an interview.

“There is a shrinking window for there to be any compromise,” Coons said.

The NRA spared Manchin its ire on Tuesday when it rolled out a $1 million ad buy focusing on Sens. Joe Donnelly of Indiana, Claire McCaskill of Missouri, Heidi Heitkamp of North Dakota and Jon Tester of Montana, the four other Democrats facing reelection battles in strongly pro-Trump states next year. McCaskill is facing particular scrutiny, denying speculation that she might be close to formally opposing Gorsuch during a Tuesday call that was supposed to focus on her work against opioid addiction.

Gorsuch “is going to get a vote on the floor,” McCaskill told reporters, adding that “I’m trying to compare and contrast this with Merrick Garland,” former President Barack Obama’s nominee whom Majority Leader Mitch McConnell (R-Ky.) blockaded for almost a year. Unlike Gorsuch, Garland “didn’t get any kind of vote on the floor,” McCaskill said.

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Heitkamp, counted by some Republicans as a Gorsuch backer because of her longtime support for an “up-or-down vote” on a Supreme Court nominee, also stood firmly in the undecided camp on Tuesday.

“Senate Republicans now say politics should never play a role in Supreme Court nominees — I agree — however they refused to extend that same courtesy last year when they didn’t give Judge Garland such fair treatment, and instead broke historical precedent, forcing his nomination to languish for almost 300 days,” Heitkamp said in a statement.

If Gorsuch ultimately wins over Donnelly, McCaskill, Heitkamp, Tester and Manchin, as well as Bennet or King, his 60th vote would have to come from a blue-state institutionalist such as Sen. Patrick Leahy (D-Vt.) — who faced ire from the left for suggesting over the weekend that he might oppose a filibuster — or California Sen. Dianne Feinstein, the Judiciary Committee’s top Democrat.

Feinstein told reporters yesterday that she would not announce her decision on Gorsuch until next week, when the committee officially votes on his nomination, but she shrugged off a question as to whether she has already decided.

Tester, for his part, said he’s trying to tune out the pressure campaign from both sides.

“There’s no whipping going on whatsoever” from Minority Leader Chuck Schumer (D-N.Y.), “probably because he knows it wouldn’t do any good,” the Montanan told reporters.

A senior Senate Democratic aide said that leadership is keeping a whip count and Schumer is engaging in conversations with his caucus about his reasons for opposing Gorsuch.

“I really should be feeling” pulled in both directions, Tester added, “but I don’t. … I don’t watch a lot of TV, anyway.”

Brent Griffiths contributed to this report.

