Heidi M Przybyla

USA TODAY

WASHINGTON — Sen. Jon Tester’s opposition to Donald Trump’s Supreme Court nominee, Neil Gorsuch, is probably the clearest indication of how Democrats are stalling the president's agenda by turning his populist 2016 campaign message back on him.

The Democrat from Montana, which Trump won by 20 points, should feel intense pressure to cooperate with Trump on something as basic as a court nominee.

Instead, several Democrats representing states that Trump won are calculating that Gorsuch’s record on labor and employment issues — and his support for campaign finance rules favoring corporations — is so out of step with their voters that they are opposing him. "They've seen what happens when you start treating corporations like people, because they have no soul like people do," Tester said of his voters.

In Montana, cultural aversion to corporate abuses and dark money runs deep. During the Gilded Age of "copper kings" more than 100 years ago, when powerful mining companies directed massive civil rights violations, Montanans decided that corporations shouldn't have the same rights as people, said Tester. “It’s pretty fundamental in everybody’s head in Montana,” he said.

Gorsuch's record is "very bad" when it comes to treating corporations like people, he said. For instance, in the 2014 Hobby Lobby case, Gorsuch supported a ruling that essentially said corporations are people with religious rights, among a number that favored corporations over workers and consumers.

It is because of Democrats like Tester — Republicans hold just 52 seats — that Senate Majority Leader Mitch McConnell cannot muster the 60 votes needed to approve Gorsuch’s nomination. That is likely to drive Republicans to scrap Senate rules to lower the threshold and force him through. There are seven Democrats representing states won by President Trump last year who are up for re-election voting against Gorsuch, also including Sen. Bill Nelson of Florida and Debbie Stabenow of Michigan.

Sen. Claire McCaskill, D-Mo., echoed Tester in a recent post on Medium in which she said she could not support Gorsuch because his opinions "reveal a rigid ideology that always puts the little guy under the boot of corporations." She also cited the Citizens United Supreme Court ruling that decided corporations and unions could spend unlimited amounts of money on political activities.

Gorsuch is the latest example of how Democrats are casting their opposition as a reaction to Trump's abandonment of his campaign populism that extends to a Cabinet stocked with millionaires and billionaires. If Trump's election marked a realignment of U.S. politics, anger over corporate influence buying was what united both Trump's passionate base and the progressive left. What it means is minimal political risk for Democrats who defy legislation, or in this case a Supreme Court nominee, seen as favoring corporations and wealthy donors.

Populist government beyond party

"You're finding a lot of voters, regardless of how they came down in the presidential election, are looking to people like Tester and McCaskill to be there for people in their states," said Sen. Chris Van Hollen, D-Md. "It’s part of a populist movement" that transcends party, he said.

Trump’s emphasis since taking office, including slashing funding for health care and a budget cutting social programs favoring many of his own voters, over his populist campaign promises to overhaul U.S. trade and infrastructure programs, is also behind Tester's decision.

"He’s not doing anything that the candidate said he was going to do, and I think people are starting to see through that," said Tester, brushing off an onslaught of negative advertising from conservative groups.

Conservatives say Democrats are distorting Gorsuch's record and bending to the far left of their party.

"They were more frightened of being primaried by the extreme left than abandoning the majority of their constituents," said Carrie Severino, chief counsel and policy director at the Judicial Crisis Network, the same group that last year successfully blocked President Obama's nominee, Merrick Garland.

She cited other cases in which Gorsuch sided with workers, including one backing female police officers alleging pregnancy discrimination; one siding with miners seeking black lung benefits and another allowing a female employee's sexual harassment claim to proceed.

"The idea that this (favoring companies) is a pattern in his jurisprudence is ludicrous," said Severino.

What's more, the strategy may backfire. If Republicans change the rules, they will be positioned to install whomever they please should another court vacancy arise. While Gorsuch is replacing conservative justice Antonin Scalia. the next opening could tilt the balance of the court.

Threats to Trump's agenda

Even though McConnell may be able to force Gorsuch's nomination through, it’s a fight with broad implications for Trump’s legislative agenda.

On Tuesday, McConnell also vowed not to similarly change the rules for passing major legislation, which means Trump will need at least eight Democrats like Tester to join Republicans to accomplish anything major, including tax reform. That's increasingly unlikely as Democrats build a narrative that Trump is abandoning the lower-income workers who were key to his political rise. If Trump's proposals resemble the failed House health care bill, meaning they favor wealthy Americans, Democrats are showing they'll have little hesitation in walking away from him.

Democrats are taking a battering by a coordinated campaign of Republican outside groups, including a campaign led by the Republican National Committee and a $10 million effort led by the Judicial Crisis Network:

An RNC 12-part series of paid digital ads targeting them, more than 30 newspaper editorials in local papers including the Cincinnati Enquirer, Charlotte Observer and Denver Post.

Teams of local surrogates who've booked hundreds of regional radio and television interviews and are coordinating with state and local party officials

The National Rifle Association is also spending at least $1 million targeting these same Democrats over Gorsuch. In his last election in 2012, Tester had an A- rating.

"To the extent they’re supposed to be representing their state they should have responded more to that pressure," Severino said.

Yet progressives also mobilized, including holding rallies around the country, targeting senators with social media campaigns and delivering petitions to every member of the Senate. They say the 2016 election shows that big spending by deep-pocketed outside groups has become a political liability. "The millions of dollars in dark money spent on his behalf only underscores the point that he's been nominated to the Supreme Court to continue siding with those powerful interests and against the rest of us," said Joe Dinkin, a spokesman for the Working Families Party.

The Democratic National Campaign sent out ads featuring average people, including a nurse practitioner alleging Gorsuch prevented her from suing for medical malpractice after surgical complications that have had "such a negative impact" on her health. "It's obvious to me he rules in favor of big business, and at the expense of the average citizen," she says in the ad.

Democrats representing states Trump won say they are now fighting him by championing the same issues he ran on.

For instance, dark money in politics has deep resonance in Montana, where Gov. Steve Bullock was bolstered in his 2012 election for fighting back after Citizens United opened the door to corporate electoral spending. In 2015, the deep red state passed sweeping campaign finance legislation to require donor disclosure.

In Michigan, where Stabenow is opposing Gorsuch, corporate abuse and labor rights also loom large. Trucker Alponse Maddin sued after a delivery company fired him for seeking warmth after his truck broke down and his feet froze in sub-zero temperatures. Out of seven judges who had heard the case over the years, Gorsuch was the only judge to rule in favor of the trucking company.

"If a justice cannot think about the real world choices of people and fairness and justice he's not somebody I want," she said. "In Michigan we have a lot of truckers who would have done exactly what he did to save their life," she said.

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