It might be hard to find a hotter seat in the U.S. Senate right now than the one occupied by Michael Bennet.
He is Colorado’s Democratic U.S. Senator and he finds himself smack in the middle of a fight over whether Democrats should try and block President Donald Trump’s nominee for the U.S. Supreme Court. That nominee is Neil Gorsuch, a conservative Colorado Court of Appeals judge who has ties to Bennet’s former employer, the conservative Denver billionaire Phil Anschutz.
If that weren’t enough, Bennet, himself a lawyer who had nice to things to say about Gorsuch when he introduced him at his confirmation hearing Monday, also has to navigate a political minefield in his own party— in Washington, D.C. and back home in Colorado.
Here is what’s at play in this three-dimensional chess match over whether to seat Gorsuch on the Supreme Court, and Bennet’s role in it.
Why is Bennet in this pickle?
First off, he’s a Democrat. Second, he’s from Colorado.
Gorsuch is also from Colorado. Republicans want to seat him. Heavyweights in Colorado’s legal community want to see him on the bench. Democrats, fuming about how Republican leaders denied President Barack Obama’s nominee Merrick Garland a nomination hearing, want revenge.
Progressive groups, pro-choice groups, LGBTQ groups, veterans groups and others are pressuring Bennet to vote against Gorsuch. Meanwhile, conservative groups are spending hundreds of thousands for a TV ad campaign for Gorsuch’s confirmation. Recently, former Colorado Democratic Gov. Bill Ritter and former Republican Attorney General John Suthers penned a dual-bylined column in The Denver Post supporting Gorsuch. (A twist: Ritter appointed Bennet to the U.S. Senate in 2009.)
Also playing out in the background: Current Democratic Gov. John Hickenlooper, who in recent weeks has become a go-to talking head for Democratic message-making on national TV, made a case for Democrats to delay Gorsuch’s confirmation.
“I wouldn’t hold it against Democrats to say, ‘Maybe we should slow this down,’” he told reporters this week. “There are real questions about what happened to Merrick Garland, and I think those actions, just like elections, have consequences.”
Hickenlooper suggested hitting the pause button on confirming Gorsuch for “another four or five months” as the FBI looks into potential Russian interference in the presidential election.
Whatever Bennet decides to do, he is not up for re-election until 2022, so he has more than five years before he’ll have to answer to voters at the ballot box in Colorado.
So far he has not yet said how he plans to vote
Though Bennet introduced Gorsuch at the start of his confirmation hearing, he didn’t say if he would vote for him.
“I am keeping an open mind on this nomination,” he said. And while he called what Republicans did to Garland an “embarrassment,” he also said, “Two wrongs never make a right.”
In my mind, I consider Judge Gorsuch as a candidate to fill the Garland seat on the Supreme Court. And out of respect for both Judge Garland and Judge Gorsuch’s service, integrity and commitment to the rule of law, I suggest we fulfill our responsibility to this nominee and to the country by considering his nomination in the manner his predecessor deserved, but was denied.
Asked about his plans during a recent town hall meeting in Colorado Springs, Bennet punted, saying “I think it’s very important to hear his testimony.” He did say he is concerned about the money-in-politics ruling Citizens United that opened the floodgates for corporate money in elections, and indicated he had spoken at length with Gorsuch about it.
Asked by a TV reporter if he felt pressure after Ritter’s public declaration of support for the judge’s confirmation, Bennet said “I don’t consider it pressure … I consider it having the benefit of his informed decision.”
What happened with Merrick Garland, anyway?
This plays a big role.
Around this time last year, then-President Obama nominated Merrick Garland to fill the seat vacated after conservative justice Antonin Scalia unexpectedly died last February.
But Garland never even got a hearing in the U.S. Senate, which at the time was run, and still is run, by Republicans. Senate leader Mitch McConnell said the 2016 presidential election should play out first. The gamble was if Trump won, then a Republican would nominate a new justice and the court would have another conservative instead of the moderate-to-liberal Garland.
Some Democrats say Republicans stole the seat from Garland and Democrats should do whatever they can to remit payback.
Asked during his confirmation hearing about his thoughts on the way Garland was treated, Gorsuch declined to offer them, saying he wanted to stay out of politics. But he said “I think the world of Merrick Garland. I think he’s an outstanding judge.”
What’s the connection between Gorsuch, Bennet and Phil Anschutz?
Phil Anschutz is a conservative billionaire who lives in Denver and gives a lot of money to various right-wing causes. He also owns The Gazette newspaper in Colorado Springs, and that paper’s editor said Anschutz would buy The Denver Post “tomorrow” if the paper would sell to him.
He is a behind-the-scenes political player and GOP powerbroker in Colorado and the nation.
Gorsuch’s “web of ties” to Anschutz were detailed in a recent front-page New York Times story, which earned criticism from at least one Colorado Republican.
The Times story reported Gorsuch did legal work for Anschutz, and “For nearly a dozen years, Judge Gorsuch has been partners in a limited-liability company with two of Mr. Anschutz’s top lieutenants. Together, they own a 40-acre property on the Colorado River in the mountains northwest of Denver, where they built a vacation home together.”
The piece also noted Anschutz lobbied the Bush administration to seat Gorsuch on the 10th Circuit Court of Appeals, which is based in Denver.
The Times story, however, did not mention that one of the U.S. senators who will be voting on Gorsuch’s nomination, that is, Michael Bennet, also worked for Anschutz.
Here’s a rundown of Bennet’s Anschutz connection from a 2015 profile in Denver’s 5280 magazine:
Bennet arrived in Colorado jobless, but figuring he’d try something new, he reached out to Phil Anschutz, the billionaire investor, and John Hickenlooper, a fellow Wesleyan grad,* whose Wynkoop brewpub was helping revitalize LoDo. Anschutz responded. Hickenlooper didn’t.
Despite Bennet’s lack of business experience, Anschutz hired the young lawyer on the condition that Bennet take night classes to learn the basics of accounting and business. He was a quick study, and within a few years he was the managing director for Anschutz’s private equity division, working on billion-dollar megadeals such as the merger of Regal Cinemas, United Artists, and another theater chain. …
Meanwhile, Bennet and Hickenlooper had become friends. (“He never lets me forget that letter,” Hickenlooper says.) When Hickenlooper ran for mayor of Denver in 2003, Bennet got involved. He earned Hickenlooper’s trust when he stressed the importance of the city’s long-ignored budget crisis. As it became clear that Hickenlooper was going to win, Bennet suggested himself as chief of staff. A few days later, Hickenlooper ran into Anschutz at the gym and awkwardly mentioned that Bennet might join his administration. Bennet was still a couple of years from having his shares vest in the Regal deal, and he stood to make about $7 million once they did. Anschutz spelled it out for Hickenlooper: “Michael. Bennet. Will. Never. Work. For. The. City. Of. Denver.” What Anschutz might not have realized was that Bennet, who had already made a few million dollars, was ready for another career change. (As of 2013, Bennet’s net worth was pegged at $12.1 million, according to the Center for Responsive Politics.) He left the Regal money behind, and today he explains, “There was a strong sense in our family that public service was something that was noble to do.”
Anschutz might have helped Gorsuch get on the federal bench, but he also helped Bennet stay in the U.S. Senate, at least in his early days.
As The Denver Post reported in 2010, “Through the end of 2009, executives and family members associated with Anschutz Co., Anschutz Group or Anschutz Investments donated more to Bennet — $39,400 — than to any other federal candidate.”
OK, let’s be real. Can Democrats actually block this nominee even if they want to?
Since Republicans hold the presidency and both chambers of Congress, the only real power Democrats have in government these days is the option to filibuster. And Democrats can use it to block a Supreme Court nominee.
If Democrats in the U.S. Senate decide to filibuster Gorsuch’s nomination, Republicans do not have the votes in their own party to end it. Current rules for stopping a filibuster of Supreme Court nominees state the Senate needs 60 votes to do so. There are 52 Republican senators and 46 Democrats. (Vermont’s Bernie Sanders and Maine’s Angus King are independents who caucus with the Democrats.) So, Republicans would need eight Democrats to defect to the Republican side to break the filibuster.
These days, filibustering does not mean a marathon standing and talking session. Democrats would just basically announce their plans to filibuster the nomination and it would trigger the Republicans having to wrangle 60 votes to stop it.
But there is also some political calculus to consider. Unlike Bennet, there are about a dozen Democrats in the U.S. Senate who are up for re-election next year in states Trump won. They are likely to want to know how their constituents feel back home about the issue.
What’s the risk Democrats run if they do try to block Gorsuch with a filibuster?
They run the risk of never being able to filibuster again while they are in the minority.
Another way to put it: They run the risk of Republicans dropping what is called “the nuclear option.”
Current Senate rules may say senators need 60 votes to break a filibuster, but Senate Majority Leader Mitch McConnell can change that rule, making a Supreme Court nomination immune to a filibuster. He would need just 51 senators to vote on it to go this route.
As Michael Tomasky points out in The Daily Beast, McConnell might not have the votes to that, though.
Republicans would have some precedent for it, too. A few years ago, Democrat Harry Reid changed the rules when the Democrats were in power in response to GOP obstructionism and eliminated the 60-vote threshold to stop a filibuster for lower-court judicial nominations, but not nominations for the Supreme Court.
Calling this the nuclear option refers to the old Cold War adage of mutually assured destruction. Essentially: You nuke us, we nuke you, we both die.
So the nuclear option, if chosen, would be good for Republicans now while they are in the majority, but it could come back to harm them if or when they find themselves in the minority again— which technically could be as early as next year.
Some Democrats also worry if they filibuster they still might lose and have nothing to show for it. Politico reported some Senate Dems are pursuing a deal with Republicans to let Gorsuch through “in exchange for a commitment from Republicans not to kill the filibuster for a subsequent vacancy during President Donald Trump’s term. The next high court opening could alter the balance of the court, and some Democrats privately argue that fight will be far more consequential than the current one.”
But on Thursday, Senate Minority Leader Chuck Schumer of New York said he would join a filibuster led by Democrats, “making it likely that the judge will struggle to find the support needed to clear a 60-vote procedural hurdle,” according to The Washington Post.
Would Michael Bennet go along with a filibuster? Does he want the Dems to do that?
He has not said, according to his office.
When will we know if the Dems will filibuster?
Probably within the next month.
Gorsuch’s confirmation hearings before the Senate Judiciary Committee end March 23 and there will likely be some time lag before a vote on his confirmation is sent to the full Senate.
What do some top Democrats in Colorado hope Bennet does?
With Democratic Gov. Bill Ritter behind Gorsuch, and current Democratic Gov. Hickenlooper suggesting a delay, those hoping to hold the office next year aren’t quick to talk about it. Perhaps underscoring just how touchy the topic might be for Colorado Democrats, messages left about it for announced and potential candidates for governor went unreturned.
Entrepreneur and Intertech Plastics CEO Noel Ginsburg, who is running for governor, told The Independent he thinks Garland should have gotten a fair hearing, but doesn’t want to see Democrats filibuster Gorsuch.
“I don’t believe that simply pushing this off as the Republicans did is an appropriate stand,” he says.
Morgan Carroll, the former Senate Majority Leader in Colorado who now chairs the state Democratic Party, says most people she talks to believe the seat Gorsuch is up for was stolen from Obama and Garland.
“They are further concerned that Mr. Gorsuch will be a decisive step backward for constitutional equality for women and LGBTQ people in America,” she told The Colorado Independent. “I think most Democrats not only oppose his confirmation, but would also support a filibuster to do so.”
Joe Salazar, who is running for attorney general, said he would like to see Bennet vote against Gorsuch, and hopes the Democrats filibuster the nomination.
“Filibustering Judge Gorsuch is not a wrong,” Salazar said, adding he has serious concerns about Trump’s conduct in office. “We have reason to stand against Gorsuch primarily because we have an investigation of a president and it may need the Supreme Court having to make certain rulings. We should withhold any votes against Judge Gorsuch for that reason alone.”
Photo by AFL-CIO America’s Unions via Creative Commons on Flickr.