Can Democrats filibuster Gorsuch nomination? Here’s the math

Driven by a base demanding all-out opposition, Democratic senators are promising to turn Neil Gorsuch’s Supreme Court nomination into a slow-moving battle.

But whether at least 41 of the 48 Senate Democrats support a filibuster — blocking Gorsuch from receiving a vote — depends largely on whether the party’s most conservative members, many of whom are up for re-election in states President Donald Trump won, stick with its most progressive members.

In the 2018 midterm elections, 10 Democrats in states Trump won are up for re-election.

Five of the Democrats are in reliably Republican states that voted overwhelmingly for Trump: Indiana Sen. Joe Donnelly, Missouri Sen. Claire McCaskill, Montana Sen. Jon Tester, North Dakota Sen. Heidi Heitkamp and West Virginia Sen. Joe Manchin.

The other five are in swing states: Florida Sen. Bill Nelson, Michigan Sen. Debbie Stabenow, Ohio Sen. Sherrod Brown, Pennsylvania Sen. Bob Casey and Wisconsin Sen. Tammy Baldwin.

If Democrats are to block Gorsuch, they could only afford to lose eight members of the party with the first group of five, in reliably red states, the most likely departures.

Some have already indicated they’re not willing to support a Democratic blockade.

Manchin was set to meet Gorsuch Wednesday afternoon. On CNN’s “New Day,” he indicated he is unlikely to support a Democratic filibuster that would block Gorsuch from reaching the 60-vote threshold.

“If you want the third branch of government to work, then you’ve got to have a nine-member Supreme Court, so if Republicans did something and now Democrats are going to do something, two wrongs don’t make a right,” he said.

While some of their more liberal colleagues have already said they will oppose Gorsuch, Democratic senators from more moderate and conservative states are slow-walking — careful not to look like they are mimicking the GOP’s tactics with the Merrick Garland nomination a year ago, when Republicans refused to grant the Obama nominee a hearing or vote.

McCaskill said she has “really tried to be calm and thorough about this and for every nominee, given them every chance for a thorough hearing, thorough vetting.”

Donnelly said he will “carefully review” Gorsuch’s record. Tester sent Montana voters an email asking for their input on what he should ask Gorsuch.

“It’s critically important that he has an understanding of the Constitution and is willing to defend it. I look forward to sitting down with Judge Gorsuch, looking him in the eye, asking him tough questions, and finding out if he shares our Montana values,” Tester said in a statement.

In a vague statement, Heitkamp criticized Republicans for their handling of Garland’s nomination, but did not tip her own hand on Gorsuch.

“It’s up to the Senate to fully consider any nominees to the Supreme Court and learn about them through meetings and congressional hearings,” she said.

However, some of the Democrats in swing states Trump won have been much more critical of Gorsuch — reflecting the push for all-out opposition from the party’s base.

“Instead of putting forward a mainstream nominee for the vacant Supreme Court seat, he has offered someone who will have a hard time earning bipartisan support,” Baldwin said in a statement.

There’s little doubt where the Democratic base is: Liberals almost unanimously want to see the party’s senators fight Gorsuch, no matter the cost.

Republicans have a major weapon to get around any Democratic opposition — the “nuclear option.”

Senate Majority Leader Mitch McConnell, R-Kentucky, could convince his Republican colleagues to eliminate the 60-vote procedural threshold permanently and allow Gorsuch to be confirmed on a party-line vote.

Doing so would also cost Democrats their opportunity to stop future Trump Supreme Court picks unless the party regains the Senate majority.

Still, many progressives want Democrats to take the risk — making clear to the country and their activist base that Republicans alone are cooperating with Trump. They’re already floating the possibility of primary challenges for Democrats who help Trump’s nominee.

Tim Tagaris, who ran Bernie Sanders’ 2016 online fundraising juggernaut, tweeted: “I’m just a guy who tried to rub a few nickels together for Bernie, but my gut says there’s good $$$ out there for primary challenges in 2018.”

It’s not just Democrats in red states that bear watching.

Institutionalists such as Illinois Sen. Dick Durbin could vote to end a filibuster, advancing Gorsuch to a final up-or-down vote. Delaware Sen. Chris Coons said he is “not going to do to President Trump’s nominee what the Republicans did to President Obama’s.”