Democrats can’t seem to land a punch on Neil Gorsuch — and it’s not even clear they want to.

President Donald Trump’s Supreme Court nominee has breezed through more than 70 meetings with senators. Opponents who’ve scoured his record have found little to latch onto. And some Democrats are privately beginning to believe that Gorsuch — barring a blunder at his Senate confirmation hearings next week — will clinch the 60 votes he needs to be approved without a filibuster.


Senate Minority Leader Chuck Schumer of New York has been taking the temperature of the Senate Democratic Caucus but hasn’t begun whipping hard against Gorsuch, sources familiar with the matter said.

Indeed, despite anger from the Democratic base that senators have cowered from a fight against Trump’s high court pick, the sole strategic decision the Democratic Caucus has made about Gorsuch ahead of his confirmation hearings is to make no decision at all.

“The only thing we’ve decided as a caucus is to ask members not to make any public commitments until the hearing phase is finished,” Senate Minority Whip Dick Durbin (D-Ill.) said.

Some embrace the tactics advocated by Sen. Jeff Merkley (D-Ore.) to wage a filibuster and bait Senate Majority Leader Mitch McConnell into trying to change Senate rules. The gamble would be that the Kentucky Republican doesn’t have the votes — or, if he does, that Democrats will win the next presidential election in 2020 and ultimately benefit from the new rules.

Or Democrats could wave Gorsuch through, reasoning that confirming him won’t change the balance of the court — but the next vacancy would, and they’d be left without a 60-vote threshold as a weapon.

“I think every nominee is important, but I know that many of my colleagues are thinking about" that dynamic, Sen. Bob Menendez (D-N.J.) said in an interview. “When is it that they fall on the sword? Is it on this one or the next one? And I’m not coming at it from that approach."

Exacerbating the indecision is the fact that a handful of Democrats facing tough reelection bids next year may face political retribution from the right or left, no matter how they vote on Gorsuch. The competing impulses have produced a public posture of apparent ambivalence and, according to one Democratic senator, a feeling that “there is no caucus strategy.”

It was really only last week — when a trio of liberal senators held a news conference to denounce what they called Gorsuch’s “anti-worker, pro-corporate” record — that some Senate Democrats began criticizing the judge’s credentials.

“There’s a fierce urgency at the grass roots that is not being echoed by the Senate Democrats,” said Ben Wikler, the Washington director for MoveOn, which joined 10 other groups in a letter urging Senate Democrats to, essentially, step it up. “The notion that Democrats should wait until after the hearings to speak their mind is a strategy to win a race by running hard in the last 30 seconds.”

Gorsuch has been studying up for his confirmation hearings before the Judiciary Committee, which are scheduled to begin Monday and are expected to last several days. Senate Majority Leader Mitch McConnell is aiming to hold a floor vote before the Senate leaves for its Easter recess, currently set to begin April 8.

Senate Democrats acknowledge the pressure from their base. But key influential players in the Gorsuch fight say it’s not their role to automatically reject the nominee.

“Our job is to put together the hearing,” said California Sen. Dianne Feinstein, the top Democrat on the Judiciary Committee. “Why have a hearing if everybody is going to take a position? … So to be talking about whether I’m for or against at this stage makes no sense at all to me because it’s uninformed.”

North Dakota Sen. Heidi Heitkamp, a red-state Democrat up for reelection who’s under heavy pressure from conservatives and liberals on the Supreme Court decision, stressed that “we should be open to supporting any nominee.” As for liberals calling on her to oppose Gorsuch, she said: “I get pressure from the left all the time. I wasn’t sent here to respond to pressure.”

Sen. Joe Manchin on the Supreme Court situation: “You need nine members. It doesn’t work with eight." | AP Photo

Sen. Joe Manchin of West Virginia, who’s in the same political predicament as Heitkamp, added that he is “truly and totally concerned” that a Democratic filibuster would prompt Republicans to do away with the 60-vote threshold for Supreme Court nominees. He is the only remaining Democrat to vote against the party’s rules change in 2013.

“You need nine members. It doesn’t work with eight,” Manchin said of the Supreme Court and Democrats who would deny Gorsuch a seat. “I understand the Democrats being so upset. I understand it. … That doesn’t make it right to go along with eight. If you think [Republicans] are going to give you a center-left [judge], they’re not! Come to grips with it.”

Menendez warned that the stance from outside groups for Democrats to be “reflexively no” on Gorsuch “works to put at risk the Republicans moving to change the rules and go to a simple 51” votes to confirm Supreme Court nominees.

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“Then it doesn’t matter what I think about the judge, right?” he added.

Republicans are more confident than ever that Gorsuch will be confirmed. Senate Judiciary Committee Chairman Chuck Grassley said Republicans wouldn’t allow senators to leave for Easter recess until he is — even if that means staying into the weekend or the following week.

“I assume he will not get a majority of Democrats,” the Iowa senator said. “But I’m counting on him getting some Democrats based on the fact that people like [Harvard law professors Laurence] Tribe and [Alan] Dershowitz and [Obama acting Solicitor General Neal] Katyal, that they’re saying good things about him.”

Grassley added that his committee staff is preparing a list of outside witnesses to testify in Gorsuch’s favor who “might surprise you.”

Democrats, too, may be more ready to fight by then. Preoccupied by the battle over repealing Obamacare and the brewing controversy over Russia’s meddling in the election, Democrats say they’re just getting started on Gorsuch.

“We’re strategizing,” Schumer insisted. “We’re just not telling you.”

