Sen. Jeff Merkley (D-OR) left his office in the Hart Office Building around 6 pm Tuesday, walked to the US Capitol, and took to the Senate floor to criticize President Donald Trump’s Supreme Court nominee, Neil Gorsuch.
He didn’t leave the floor for another 15 hours and 28 minutes.
The Oregon senator didn’t technically filibuster Gorsuch’s nomination: Instead, he used the existing floor time allowed under Senate rules to highlight Democrats’ opposition to Gorsuch, according to an aide.
On Tuesday afternoon, Senate Majority Leader Mitch McConnell (R-KY) filed for cloture — to move to a vote — on Gorsuch’s nomination. Doing so set off a mandatory 30 hours to allow for debate before the cloture vote is held. Republicans do not have the 60 votes to reach cloture, and are expected to instead use the “nuclear option” to change Senate rules so Gorsuch can be confirmed with only 51 votes.
During his speech, Merkley spoke about Gorsuch’s career, talked at length of his rulings on sexual discrimination cases, and harped on the seat denied to President Barack Obama nominee Merrick Garland, the judge nominated to replace Justice Antonin Scalia, who died in February 2016.
“The majority team in this chamber decided to steal a Supreme Court seat,” Merkley said. “The majority said, ‘We intend to pack the court of the United States of America.’ It was a warfare tactic of partisanship.”
Merkley became the first Democratic senator after Gorsuch’s nomination was announced to promise to filibuster him. In an interview with Vox in his office on March 24, Merkley predicted that Democrats would come up with the votes to filibuster Gorsuch — a prediction that proved correct.
According to Roll Call, Merkley’s speech was the eighth-longest delivered in the Senate since 1900. Since he began speaking at 6:46 pm, Merkley drank from a bottle of water but didn’t eat or sit down until he gave up the floor at 10:15 am Wednesday morning. His staff cites his completion of an Ironman triathlon in 2013 and 2016 — preparation that the seven senators who’ve given longer speeches in the last 117 years, including Strom Thurmond, Huey Long, and Ted Cruz, did not have.
A transcript of a March conversation between Merkley and Vox’s Jeff Stein, edited for length and clarity, follows.
From Obama’s appointment of Merrick Garland until the Republicans in the Senate refused to give him a hearing, until Gorsuch’s confirmation hearing today, what has this whole Supreme Court fight taught you about American politics that you did not believe before?
What is dramatically different is that we are dealing with a seat in which the Senate did not abide by its responsibilities under the Constitution to seat Obama’s nominee. That has not happened in our history.
It’s important to keep recognizing that this is a seat stolen from President Obama, put into a time capsule, and delivered forward to the next president. Republicans did that in the hope, with the dream, that they’d put forward a very different Court and put a very different judge up for confirmation than did President Obama.
If this succeeds, it’s a precedent that’s terribly destructive. Destructive to the Senate, because it will say, “We can refuse to do our job under the Constitution,” and destructive to the integrity of the Court. Because the Court has been rigged if this nomination of Neil Gorsuch is successful.
How has this changed your tenor of thinking about working with Republicans? How has that story changed your understanding of how the Senate works?
When I came to the Senate in 2009, I heard that Mitch McConnell wasn’t interested in solving problems and was all about power and obstruction. And I didn’t really believe them.
I felt when you come to the Senate, you have a responsibility to address issues. In short order, I discovered that those stories if anything undersold the fact that Mitch McConnell is completely motivated by political purpose. He didn’t want to solve the problems facing America; he’d do anything possible to undermine the success of President Obama’s ability to be reelected.
The Senate looks so different than I saw as an intern for [Oregon] Sen. [Mark] Hatfield 41 years ago. So different than when I worked for Congress in the 1980s.
Do you think the rest of your colleagues on the Democratic side recognize that?
They absolutely recognize what Mitch McConnell has done and how it’s undermined this institution. It was only a couple decades ago that everything in the Senate was done by simple majority.
The idea you’d require a supermajority to get something done was reversed for very rare occasions. That has completely flipped now. Everything now is a supermajority.
I hear you when you say that the Democratic caucus understands this is what McConnell is all about. But before the hearing, the Huffington Post came out with a story saying Democrats did not have the appetite for an all-out war on this. Some Democratic senators are saying, “We shouldn’t try to treat Grouch the way they treated Garland.” And there’s a recognition Democrats have to play nice.
Is that a mistake? Or is that an incorrect assessment of your colleagues’ attitude?
When my colleagues say, “We’re not going to treat Gorsuch the way Republicans treated Garland,” what they’re saying is, “He’ll get a committee hearing; he’ll get vetted in committee.” Knowing Republicans have control, they know he’ll get to the floor. But that floor vote may well be a vote on closing debate. And my colleagues are not saying they are committed to closing debate.
Had the Republicans proceeded to hold hearings on Merrick Garland and put him on the floor and then voted on him — whether to table it or to defeat it, or so forth — that would have at least been in the realm of the Senate doing its job. But do not assume this means that people are going to be prepared to close debate, which is the more procedural way to describe what the filibuster is.
Let me phrase this more directly: Are you worried Democrats are going to vote to confirm Gorsuch?
I believe Democrats will filibuster Gorsuch and will not vote to close debate. There is a concern. The concern is that some may say, as has been reported, “Why not strike a deal with Republicans? They agree to keep the rule in place, and we agree not to filibuster.”
We have to realize this is a losing strategy. That simply means Republicans can agree to change the rule on the next individual.
If folks say, “This one doesn’t really change the Court” — absolutely it does. We have a 4-4 Court; you can look at the 5-4 Court, it’s all anti-labor, anti-consumer, anti-environment decisions. And so there are enormous consequences to confirming this extreme far-right nominee.
When I talk to more moderate Democrats, they see their institutional prerogatives as being in tension with the policy outcomes you’re talking about. They see it as there being two axes to uphold — one that’s being a good senator, following the Senate rules and traditions; and two, fighting for the progressive policies they believe in.
Do you feel that for you or the rest of your colleagues, this second axis is taking over the first in importance?
I think the two are compatible.
Senators who said, “Yes, we must have a committee hearing; we need to have a debate on the floor” — that’s the procedural side.
But that’s not incompatible with voting against closing debate, because the policy consequences of this far-right judge are enormous. I’ve listened to my Senate colleagues who two or three weeks ago were in neutral territory, who now reviewed case after case after case and met with, listened to, heard from Judge Gorsuch, and they’re saying, “I started out in the middle ground, but the more I find out he’s the furthest-right judge ever put before the Senate, that is not compatible with our Constitution” — well, these are my words at this point.
This is really a dynamic between the vision of a government that works of, by, and for the people and one that works of, by, and for the corporations. That’s what’s at stake here.