And then there were 40 — or perhaps more. Red-state Democrats like Claire McCaskill (MO) and Jon Tester (MT) signing up for a partisan Supreme Court filibuster? Surprise. Deep-blue California’s Dianne Feinstein and Vermont’s Pat Leahy? Er … not so much. Three more Senate Democrats tossed in their lot with Senate Majority Leader Chuck Schumer today, daring Republicans to exercise the Reid Option and take the filibuster off the table for all presidential appointments:

Sen. Dianne Feinstein (Calif.), the senior Democrat on the Judiciary Committee, announced she will oppose President Trump’s Supreme Court nominee Neil Gorsuch Monday.

“Unfortunately, based on Judge Gorsuch’s record at the Department of Justice, his tenure on the bench, his appearance before the Senate and his written questions for the record, I cannot support this nomination,” she told colleagues before a scheduled committee vote on his nomination.

A spokesman also said that she will support a Democratic filibuster.

Immediately following Feinstein’s declaration, both Leahy and Mark Warner (D-VA) followed suit:

Of the three, perhaps Warner might be the only mild surprise. He nearly lost his seat in 2014 to Ed Gillespie in an unexpectedly close re-election race, but he has until 2020 to repair any damage that obstructionism might create — and Donald Trump didn’t carry Virginia anyway. McCaskill and Tester will have more problems in 2018.

Are we really at 40, though? According to AoSHQ Decision Desk, the number is actually 42 — and a done deal on cloture. Only three members of the Senate Democratic caucus have yet to take a position on the filibuster, and only one is at risk: Michael Bennet of Colorado, who helped introduce Gorsuch along with Cory Gardener. Bennet has come out in opposition to both the filibuster and the nuclear option:

In other words, we’re on a collision course for the judicial-nomination filibuster. Can Mitch McConnell deliver the votes? The Democratic attacks on Gorsuch might galvanize Republicans, especially given their level of hypocrisy. The latest attack line is that Gorsuch supports “dark money” in politics by supporting the Citizens United decision — a weird attack, given Feinstein’s level of unhappiness over Gorsuch’s supposed lack of respect for stare decisis in other cases. Senate Judiciary chair Chuck Grassley (R-IA) lashed out at his colleagues for opposing free speech, and for failing to acknowledge that their allies operate in exactly the same manner they supposedly decry:

 

GRASSLEY: Now as a Senator who has participated in 14 Supreme Court hearings, I must say these comments strike me as really odd. To hear my friends on the other side tell it, “it is only conservative outside groups who are engaged in the nomination process.” But we all know that isn’t true. It is no secret that there are dozens of advocacy groups on the left who get involved in the nomination process. There is absolutely nothing — nothing whatsoever wrong with that. We call it free speech. A group called the Coalition for Constitutional Values ran ads in support of Justice Sotomayor and Justice Kagan before their confirmation. The American Constitution Society touted Justice Kagan as “a Justice for every American.” Where did their money come from? I don’t know and I suppose a lot of people think that I shouldn’t say I don’t care, but this is America where people can then their many where they want to spend it and they can use their money for political speech or for any advocacy that they want.

And of course as we see, advocacy groups on the left are engaged on this nomination as well. Liberal billionaires like Tom Steyer, George Soros found their own dark money organizations like NextGen Climate, a group that describes Judge Gorsuch as “an extreme candidate wrong for the supreme court under any circumstances.”

Everyone in this room knows that liberal and progressive groups have been pressuring the minority leader to find a reason – any reason – to filibuster a nominee. NARAL has run ads to pressure members to filibuster. We even had some groups called Progressive Change Campaign committee target a senior, and extremely well-respected Democrat over his quote, unquote “squishy comments,” suggesting he might not filibuster. In short, they have threatened to primary any Democrat who supports the nomination. Now that is very dark.

It doesn’t look like there’s any room for compromise. The question now is whether McConnell can pull off the rule change under precedent, as Harry Reid did as Senate Majority Leader in 2013. Watch for John McCain and Susan Collins — and for an appearance by Mike Pence.

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