Sen. Claire McCaskill of Missouri warned Democratic donors that blocking President Donald Trump’s Supreme Court nominee could have dire consequences, according to audio obtained by The Star.
McCaskill, a Democrat up for re-election in a state Trump won by double digits, told reporters this week that she’s still deciding how to vote on Neil Gorsuch, the federal appellate judge who Trump has tapped to fill the U.S. Supreme Court seat that became vacant when Justice Antonin Scalia died last year.
But in a recording provided to The Star by the Missouri Republican Party, McCaskill lays out the pitfalls of voting against Gorsuch. The GOP did not disclose its source for the audio, which was obtained at a fundraiser Sunday in Springfield.
McCaskill told the fundraiser’s attendees that blocking Gorsuch could result in someone worse being appointed to the court in the future, according to the audio. The recording gives insight into McCaskill’s thought process as the senator, a key swing vote, weighs her decision on Gorsuch.
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Republicans need eight Democratic votes to obtain the 60 votes needed to overcome a filibuster and confirm Gorsuch. Senate Minority Leader Chuck Schumer of New York has called for a filibuster of Gorsuch, but McCaskill predicted that if Democrats refuse to confirm Gorsuch then Republicans would likely look to eliminate the rule and reduce the number of votes needed for confirmation to 51.
“The Gorsuch situation is really hard. There are going to be people in this room that are going to say, ‘No, no, no. You cannot vote for Gorsuch,’ ” McCaskill said in the recording. “Let’s assume for the purposes of this discussion that we turn down Gorsuch, that there are not eight Democrats that vote to confirm him and therefore there’s not enough to put him on the Supreme Court. What then?”
She pointed to the list of potential nominees that Trump released before the election to galvanize conservative support. “By the way, Gorsuch was one of the better ones,” McCaskill quipped.
“So they pick another one off the list and then they bring it over to the Senate and we say no, no, no, this one’s worse. And there’s not enough votes to confirm him. They’re not going to let us do that too long before they move it to 51 votes,” she said.
Democrats eliminated the filibuster for most appointments in 2013 when they controlled the Senate, but left the rule intact for Supreme Court justices.
McCaskill made a distinction between using the filibuster to block Gorsuch, who would replace Scalia, arguably the court’s most conservative justice during his tenure, and using it to block a nominee if one of the court’s more liberal or centrist justices dies or retires.
“So they move it to 51 votes and they confirm either Gorsuch or they confirm the one after Gorsuch,” she continued. “They go on the Supreme Court and then, 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."
Judge Neil M. Gorsuch, President Trump's choice for Supreme Court justice, adheres to originalism, a judicial approach that would deeply affect how he would make decisions from the bench.The New York Times
McCaskill acknowledged that many members of the party’s base want Democrats to fight any Trump nominee after Republicans refused to even hold a hearing for President Barack Obama’s nominee, federal Judge Merrick Garland.
She also said that she finds some of Gorsuch’s past rulings disturbing, pointing to a case in which Gorsuch joined in a unanimous 10th Circuit ruling against an autistic student’s family that was suing a Colorado school district on the grounds that it had failed to meet the federal Individuals with Disabilities Education Act.
“There is enough in his record that gives me pause … so I am very comfortable voting against him, but I’m very uncomfortable being part of a strategy that’s going to open up the Supreme Court to a complete change," she said.
Austin Stukins, the executive director of the Missouri Republican Party, said in an email that “Gorsuch is eminently qualified to serve on the highest court in the land, and Claire McCaskill is treating him like a pawn in a game of chess.”
“I urge McCaskill to clarify her vote for Judge Gorsuch — not pick and choose what narrative plays best depending on the crowd,” Stukins said. “To date, Claire McCaskill’s intentions are muddy at best — Missourians deserve better than that.”
McCaskill’s spokesman John LaBombard on Wednesday called McCaskill’s comments “an honest answer to a question.”
“She was asked about the lay of the land with the Gorsuch nomination and gave her thoughts. She didn’t say how she is going to vote on the nomination because she hasn’t decided yet,” he said.