By Alexander Bolton - 03-30-17 06:00 AM EDT
Senate Democratic leaders are giving centrist colleagues space on Neil Gorsuch despite strong pressure from the liberal base to sink President Trump's Supreme Court nominee.
Minority Whip Dick Durbin (D-Ill.) says he's not tallying votes for the nominee, leaving it to Democratic Leader Charles Schumer (N.Y.) to have one-on-one conversations with undecided members of their caucus.
Sen. Jon Tester (D-Mont.) said Schumer is giving centrists like him room to decide how to vote, mindful that 10 members of the conference face reelection in states Trump won in November.
"Schumer hasn't said anything to me. I have not visited with Chuck," Tester said. "There's no whipping going on whatsoever - probably because he knows it probably wouldn't do any good."
A senior Democratic aide disputed that claim, however, insisting, "We're whipping it."
The aide said Schumer knows that some of the lawmakers facing reelection next year in states Trump won by double digits will likely advance Gorsuch to a final confirmation vote.
"We have eight votes to play with," the aide said.
Republicans control 52 seats and need eight Democrats or Independents to join them to reach the 60-vote threshold for ending a filibuster.
Earlier Wednesday, Schumer told reporters it's unlikely Gorsuch will muster the 60 votes he needs, one day after saying he has a "real uphill climb" to even get to a final up-or-down vote.
A senior aide to a Democratic senator who is undecided on Gorsuch said he has not seen an obvious effort by Schumer to whip votes one-on-one.
The aide said Schumer is giving red-state Democrats a lot of leash because he knows he has the 41 votes he needs to block Gorsuch.
More than half the conference has come out against the nominee.
Sen. Joe Manchin, whose home state of West Virginia voted for Trump overwhelmingly, said Schumer has not tried to twist his arm.
"Not at all. Chuck's been great. He knows who I am. We've been really good friends. He gives me his points of view, and I say it makes sense or it doesn't," he said.
He's told Schumer he wants to meet with Gorsuch again before making a decision on final confirmation but has said he'll support ending the filibuster - called cloture - on the nomination. Manchin is the first and only Democrat so far to offer to help Trump's pick get over the 60-vote threshold.
Sen. Heidi Heitkamp (N.D.), another vulnerable Democrat in a state Trump won, seemed to signal Tuesday that she might vote for cloture on Gorsuch.
Durbin noted that Schumer has limited leverage with the centrist bloc of his party.
"It's not a formal whip count, up-or-down whip count," he said. "We're not doing it that way."
He said vulnerable Democrats such as Tester, Heitkamp and Claire McCaskill (Mo.) will have leeway to make their own decisions.
"We don't have binding caucus positions," he added.
Despite growing confidence among Democrats that they can block Gorsuch, a senior GOP aide counted 16 Democrats as undecided - giving Senate Majority Leader Mitch McConnell (R-Ky.) hope of reaching the 60-vote threshold.
Potential swing votes include Democrats from states Trump won handily, such as Tester, Heitkamp, McCaskill and Sen. Joe Donnelly (Ind.). They also include Sens. Dianne Feinstein (Calif.), the senior Democrat on the Judiciary Committee; Michael Bennet (Colo.), who represents Gorsuch's home state and introduced him at his confirmation hearings; Mark Warner (Va.), a centrist with a record of working with the GOP; and Angus King, an Independent from Maine who caucuses with Democrats but praised Gorsuch's record as "exceedingly independent."
Two more Democrats, Sens. Tim Kaine (Va.) and Martin Heinrich (N.M.), came out against Gorsuch on Wednesday and also said they won't vote to advance him to a final vote.
Kaine said Gorsuch showed "selective activism in restricting women's rights" during his tenure on the 10th Circuit Court of Appeals, while Heinrich voiced concern over the judge's "record of siding with large corporations over the rights of individuals."
Sen. Maria Cantwell (Wash.), who supported ending a filibuster of conservative Justice Samuel Alito's nomination to the Supreme Court in 2006, met with Gorsuch Wednesday and plans to announce her decision soon.
Senate Republicans have accused Schumer of breaking Senate tradition by filibustering a Supreme Court nomination, something that happened successfully only once in history, when a bipartisan group of senators blocked the nomination of Abe Fortas to serve as chief justice in 1968.
A senior Republican called Schumer's action "completely irresponsible."
But Democrats counter that Republicans broke 230 years of precedent by refusing to give President Obama's nominee, Merrick Garland, a hearing or a vote for nearly 10 months.
In fact, Sen. Tom Carper (D-Del.) said he'll "oppose Judge Gorsuch's nomination until we find agreement on moving Judge Garland's nomination forward at the same time."
Schumer has come under heavy pressure from the liberal base to put up a stiff fight against Gorsuch.
An estimated 3,000 protesters gathered outside his apartment in Brooklyn on the same day Trump announced the nominee.
A senior Democratic aide said it must have been a "jarring" experience for Schumer, who is used to being treated as a hero in his home state and who won reelection last year with 70 percent of the vote.
But with Senate Republicans threatening to change the filibuster rules, some Democrats privately argue it would be smarter for Schumer to allow centrist colleagues to vote for Gorsuch now in hopes of saving the procedural block for a second Supreme Court seat that might become vacant under Trump.
They argue the stakes would be higher if a liberal justice such as Ruth Bader Ginsburg, 84, or Stephen Breyer, 78, retired or fell ill.
Schumer countered that argument on Wednesday, saying the fight over Gorsuch is as important as any down the road.
"We believe that there are Republicans that are reluctant to change the rules," he said. "We hope they won't do it."
"If they're going to change the rules on this one, why wouldn't they change them on the next one afterwards anyway?" he added.