McCaskill’s Fear Last Year: 'God Forbid Kennedy Retires'

Senator warned against forcing GOP to use nuclear option on Gorsuch

Sen. Claire McCaskill / Getty Images
June 28, 2018

The nightmare scenario Sen. Claire McCaskill (D., Mo.) laid out last year when asked in private about whether Democrats should obstruct Neil Gorsuch's Supreme Court confirmation is coming true with Justice Anthony Kennedy's retirement.

McCaskill warned in leaked audio released last March by the Kansas City Star that Democrat opposition to Gorsuch could end up biting them in the future should more seats open up while President Donald Trump was still in office and Republicans controlled the Senate. Democrats, however, made clear they planned to filibuster his nomination, pushing Republicans to employ the nuclear option, lowering the confirmation threshold to a simple majority.

"I’m very uncomfortable being part of a strategy that’s going to open up the Supreme Court to a complete change," McCaskill told the donor crowd, explaining that obstruction would simply push Republicans to move to 51 votes for confirmation.

"There are going to be people in this room that are going to say, 'No, no, no. You cannot vote for Gorsuch,'" she said. "So they move it to 51 votes and they confirm either Gorsuch or they confirm the one after Gorsuch."

McCaskill was looking ahead to what Democrat obstruction would mean for the next fights, which have now arrived.

"God forbid, Ruth Bader Ginsburg dies, or [Anthony] Kennedy retires or [Stephen] Breyer has a stroke or is no longer able to serve. Then we're not talking about Scalia for Scalia, which is what Gorsuch is, we're talking about Scalia for somebody on the Court who shares our values. And then all of a sudden the things I fought for with scars on my back to show for it in this state are in jeopardy."

McCaskill eventually voted against the Gorsuch confirmation, which passed with the support of just three Democrats, senators Heidi Heitkamp (N.D.), Joe Manchin (W.V.), and Joe Donnelly, who each, like McCaskill, are up for reelection this year in states Republicans carried in 2016.

McCaskill has not commented on how she thinks Democrats should handle confirming Trump's pick to replace Kennedy, saying, "It's premature to discuss his replacement until one has been nominated."

She will be pushed by Republicans to support the nominee given her attempts to position herself as a centrist.

"Claire McCaskill has never once voted in line with Missouri’s wishes on a Supreme Court nominee, and that's why she must be replaced," said Missouri's Republican attorney general Josh Hawley, who is running for Senate and says he would have supported Gorsuch last year.

"I am proud that President Trump chose Neil Gorsuch for the Court last year," he said. "Senator McCaskill ignored her constituents and voted against him."

Top Senate Democrats have indicated plans to obstruct any nominee Trump puts forward, but Republicans say there will ultimately be nothing they could do to stop confirmation this fall.