The Senate Went “Nuclear” to Give Donald Trump a Win on Gorsuch: Now What?

| March 30, 2017

The biggest popular vote loser in history to ever call himself president has now given us the only cloture vote loser to ever call himself a Supreme Court Justice—this could not have happened without the complicity of Senate Republicans, and they need to be held accountable.

Download PDF version

Neil Gorsuch Should Never Have Been Confirmed

For the entire history of the Senate, we have held nominees to the Supreme Court to a bare-minimum standard of bipartisanship by requiring that they garner enough support to overcome a filibuster. This has normally not been a challenge for Supreme Court confirmations across the political spectrum: Antonin Scalia reached our highest court with 98 votes, Ruth Bader Ginsburg got 96.

But Donald Trump put forward a nominee so far to the right of the American mainstream that he could not even win over eight Democrats or Independents to reach the 60 vote threshold required to move forward under the long-standing rules of the Senate. If 2017 were a year of politics as usual, Republicans may have acknowledged their failure to get 60 votes and asked the White House to put forward a more mainstream nominee.

But another stumble after the recent failure of TrumpCare was not an option for the Trump administration, so Senate Majority Leader Mitch McConnell devised an unprecedented plan to turn Trump’s miscalculation on Neil Gorsuch into a “victory.”

McConnell Chose to go Nuclear

On Thursday, April 6th, for the first time in Senate history, McConnell used his razor-thin, 52-vote majority to blow up a 230-year-old Senate rule and permanently remove the filibuster-proof threshold for Supreme Court nominees. This decision not only guaranteed the confirmation of Neil Gorsuch despite widespread dissent, but it also permanently altered the way the Senate vets Supreme Court candidates.

Neil Gorsuch’s lifetime appointment to the Supreme Court is likely to bring decades of deeply consequential rulings in favor of corporate interests over average Americans. Republicans’ decision to ‘go nuclear’ on the Senate rules to ram Gorsuch through will yield a more partisan and divided Supreme Court for perpetuity.

This is the bottom line: the biggest popular vote loser in history to ever call himself president has now given us the only cloture vote loser to ever call himself a Supreme Court Justicethis could not have happened without the complicity of Senate Republicans, and they need to be held accountable.

Remember, the fight is just beginning

Now that Neil Gorsuch is on the Court, we have to make sure that Donald Trump is not able to take over the entire judicial branch. The Supreme Court is just one part of that branch. Lower federal circuit courts and district courts are also lifetime appointments and, with 115 vacancies federal court vacancies, Donald Trump has the opportunity to pack the courts with ultra-conservative ideologues like Neil Gorsuch. Let your Senators know that you also care about these lower court nominees.

What You Can Do During April Recess

If your Senator is a Republican, he or she voted to “go nuclear” on the Senate rules to shove Gorsuch past the standard every Supreme Court judge before him had to pass. Let them know you took notice. Remind your Senators that, when Gorsuch continues to deliver rulings in favor of corporations as he has his whole career, but this time as a tie-breaking 5th vote on our Supreme Court, you will remember that they pulled out all the stops to make sure Trump could have a victory on his pick.

If your Senator is a Democrat, he or she stood up against the ‘nuclear option’ to preserve a high bar for confirmations to the Supreme Court. Let them know you appreciate that they thought beyond the pressures of this political moment to safeguard a process that guarantees some degree of bipartisanship in confirming our top judges.

Town Hall/Office Visit Feedback:

ALWAYS try incorporating a personal story when communicating with your MoCs. It is important for your Senators to hear feedback from over their vote—whether they opposed Gorsuch and the nuclear option, or whether they supported. Below are sample statements and questions for your Senators.

For Republican Senators

  • I’m deeply disappointed that you chose to undo more than 200 years of Senate rules and tradition to give Donald Trump a win. Those rules have existed for a reasonto keep ultra-extreme candidates from getting confirmed to the Supreme Court. I will remember come next election that you sided with Trump over the interests of your constituents. How can we trust you to stand against the rest of the Trump agenda if you were willing to betray our values on this pivotal vote?
  • Senator, you took part in overturning Senate rules to enable the confirmation of Donald Trump’s extreme Supreme Court pick, Neil Gorsuch. That’s bad enough, but the Supreme Court only rules on around 80 cases a year. The majority of casesincluding the roughly 7,000 that the Supreme Court receives but doesn’t hearare upheld with decisions by lower court judges. What can you say to us today about action you will take to oppose any Trump judicial nominees that are out of the mainstream and would turn our justice system into a rubber stamp for the Trump agenda?  
  • Federal courts decide cases regarding civil liberties, clean air, privacy, reproductive rights and corporate misdemeanors. We need a fair and independent judiciary that respects our constitutional values and the rights of everyday citizens. You voted to overturn 230-year-old Senate rules to ram Neil Gorsuch through to the Supreme Court. Do you also plan to allow Trump to threaten the women, workers, consumers, and citizens of your constituency by populating lower courts with ultra-conservative judges?

For Democratic Senators

  • Senator, thank you for fighting back against Donald Trump’s appointment of a person with a radical, ultra-conservative record, Neil Gorsuch, to the Supreme Court.  That was a principled and courageous stand, but the Supreme Court only rules on around 80 cases a year. The majority of casesincluding the roughly 7,000 that the Supreme Court receives but doesn’t hearare upheld with decisions by lower court judges. Can you commit to me, your constituent, that you will oppose all Trump judicial nominees that are out of the mainstream and would turn our justice system into a rubber stamp for Trump and his dangerous agenda, hurting everyday people?  
  • We've seen how far Trump’s friends in Congress are willing to go to ram through ideologues like Neil Gorsuch. Circuit courts decide roughly 30,000 cases each year. That is 30,000 opportunities to protect women, workers, consumers and everyday citizens of your constituency. How will you protect those opportunities by preventing Trump from packing the lower courts with extreme nominees?
  • By Trump’s own admission, Judge Gorsuch was chosen from a Federalist-society approved nominee list, and was subjected to a pro-life ‘litmus test’ prior to his nomination. What do you think of this kind of special-interest vetting and ‘litmus testing’ for judicial nominees?  Will you refuse to confirm any Trump nominee that is proposed based on interest-group interference or ideological biases?

Accountability on the Cloture Vote: Senators Manchin, Donnelly, Bennet and Heitkamp ONLY

Although enough Democrats and Independents stood strong with Senate Minority Leader Chuck Schumer in opposing cloture on a Neil Gorsuch filibuster, Senators Manchin, Donnelly, Bennet and Heitkamp inexplicably broke ranks with their party in favor of an easier path towards confirmation for Donald Trump’s Supreme Court pick. They need to hear from you why every vote counts in pivotal fights like this.

  • When Mitch McConnell moved to end a filibuster on Neil Gorsuch, 44 Democrats and Independents stood strong against letting this extreme Supreme Court pick move forward. You were one of only four members of your caucus to break ranks with your party and vote for cloture. How can we trust you to stand against the rest of the Trump agenda if you were willing to betray our values on this pivotal vote?