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Schumer Says Gorsuch Needs 60 Votes After Voting for Him in 2006

Chuck Schumer
Chuck Schumer / AP
• February 7, 2017 4:11 pm

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Senate Minority Leader Chuck Schumer (D., N.Y.) argued in an op-ed published Tuesday that Neil Gorsuch, President Trump's nominee for the Supreme Court, must have a filibuster-proof 60 votes in the Senate to be confirmed, despite voting 11 years earlier to confirm the judge to a federal circuit court post.

Schumer wrote in Politico that Senate Democrats are not being "unfair or obstructionist" with the 60-vote demand but doing their duty to ensure the preservation of an independent judiciary.

"This is not unfair or obstructionist–this is the Senate doing its job by critically evaluating a nominee who will have immense impact on the lives of Americans," Schumer wrote. "The most important factor in assessing a Supreme Court nominee in the time of the Trump administration is whether or not the potential justice will be an independent check on an executive who may act outside our nation's laws and the Constitution."

"It remains to be seen if Judge Gorsuch is able to fulfill that important constitutional role," the Senate's top Democrat added.

Schumer argued that a simple majority of 51 votes is not sufficient to confirm Gorsuch given the gravity of the situation.

"Nominees to our nation's highest court must demonstrate that they are mainstream and independent enough to earn the support of at least 60 senators from both parties," Schumer said. "Both of President Obama's nominees to the Supreme Court exceeded that level of support. The simple question we are asking is: Can President Trump's nominee meet that same test?"

"If the nominee fails to meet 60 votes, the answer isn't to change the rules; it's to change the nominee."

Back in 2006, however, Schumer voted to confirm Gorsuch to the U.S. 10th Circuit Court of Appeals–along with several other Democrats still in the Senate, as well as Hillary Clinton and Barack Obama. Gorsuch was confirmed unanimously and got "yes" votes from 45 Democrats.

But 11 years later, Schumer is arguing that Gorsuch deserves greater scrutiny.

"The Supreme Court, now more than ever, demands a higher level of scrutiny than lower court positions. Senators from both parties have long recognized this," Schumer wrote, citing Sonia Sotomayor and Elena Kagan as nominees who Republicans voted for to lower positions but not the nation's highest court.

Schumer also criticized President Trump's idea that Senate Majority Leader Mitch McConnell (R., Ky.) use the so-called "nuclear option" to allow a confirmation to pass with a simple majority and avoid a filibuster.

The Senate majority leader wrote that Gorsuch needs to be vigorously vetted because of Trump's executive order temporarily barring refugees from entering the U.S. and halting immigration from seven Muslim-majority countries over terrorism concerns. Schumer called the order a "violation of America’s laws and values."

But in the article, Schumer did not make any arguments against the merits of Gorsuch's nomination, only cautioning that the Senate must confirm a "moderate" choice to constrain Trump in the White House.

In contrast to Schumer's piece, a Yale law school professor cautioned Democrats on Tuesday in a Wall Street Journal op-ed that "moderates" in the party could do much worse than Gorsuch and should vote to confirm him.

"Moderates could do a lot worse than Judge Neil Gorsuch—and we probably will if he isn't confirmed," wrote E. Donald Elliott, who identified his views as aligned with those of Justices Stephen Breyer and Elena Kagan, in that "judges must respect the Constitution's text and history but may also interpret them to fit the changing times."

"Donald Trump is clearly determined to nominate a judicial conservative to the Supreme Court. Elections have consequences, as Barack Obama once chided congressional Republicans," he added. "But among judicial conservatives, Judge Gorsuch is as good as it possibly gets."

Elliott then praised Gorsuch for his qualities as a jurist.

"I have known him personally for more than a decade, since he was an attorney in the Justice Department. He is a brilliant mind, but more important he is a kind, sensitive, and caring human being," Elliott wrote. "Judge Gorsuch tries very hard to get the law right. He is not an ideologue, not the kind to always rule in favor of businesses or against the government. Instead, he follows the law as best as he can wherever it might lead."