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The hearings for President Donald Trump’s Supreme Court nominee that begin Monday may focus on another judge altogether.
Democrats are still upset over the obstruction of Merrick Garland, who then-President Barack Obama nominated last year to fill the empty seat after Justice Antonin Scalia's death. They say the GOP obstructed Merrick unfairly.
The data shows that out of the last 10 picks who did not withdraw their nominations Garland was the only one denied a vote.
Senate Majority Leader Mitch McConnell has defended that approach, stressing Republicans were a check on Obama by blocking his nominee.
“Of course the American people should have a say in the court's direction. It is the president's constitutional right to nominate a Supreme Court justice,” McConnell said. "And it is the Senate's right to act as a check on a president and withhold its consent.”
That's a break with the GOP position when George W. Bush was in office. At that time, Republicans argued there should be a vote.
But Republicans blocked Garland, Trump won, and some Democrats say that unprecedented strategy should not be rewarded.
"The Senate should refuse to confirm anyone President Trump nominates to the Supreme Court — until Trump renominates and the Senate confirms Judge Merrick Garland," writes former Clinton Justice Department official Dawn Johnsen.
On Sunday, former Wisconsin Senator Russ Feingold told MSNBC that this is an “illegitimate seat.”
“He’s not a person who normally would be associated with something as illegitimate as taking a Supreme Court seat that absolutely does not belong to this president,” Feingold said of Gorsuch.
Are Democrats listening?
Senate Minority leader Sen. Chuck Schumer is not calling on his caucus to block Gorsuch — a point confirmed with his aides this weekend.
The grassroots pressure, however, is stronger, with groups like MoveOn opposing the nomination.
"As a criminal defense attorney, I know that in criminal law, the defendant who knowingly receives stolen property is just as guilty as the defendants who stole it. Any ethical judge should decline this seat until Merrick Garland, Obama's choice, is seated...Democrats should filibuster this choice, and fight with every fiber of their being, or they will be guilty of letting the Republicans get away with stealing a Supreme Court seat,” attorney Dave McLane put it in a plea to Democrats.
Connecticut Sen. Richard Blumenthal didn’t go that far, but on Sunday he told MSNBC that he would use “every tool” available to block the nomination if Gorsuch does not satisfy his concerns on judicial independence and upholding Roe v. Wade.
“Roe v. Wade certainly fits that description, and that kind of out-of-the-mainstream thinking will cause me to filibuster and use every tool I have at my disposal to block his nomination,” Blumenthal said.
The question is whether Democrats will unite on that approach.