Why Filibustering Trump’s Supreme Court Nominees Is the Only Rational Strategy for Democrats

Dear reader: this is not an attempt to persuade you. I assume you already agree with me that this Supreme Court seat was Obama’s to pick and that Senate Republicans’ obstruction amounted to a theft. I also assume you either find Neil Gorsuch (or anyone else Trump would nominate) too far right, or you consider the process violation of the last 11 months to be far more important than your ideological preferences. As a result, you agree that this seat should belong to Merrick Garland or someone similar in both qualifications and position on the ideological spectrum, and that any right-wing candidate is unacceptable in the present circumstances.

If you don’t agree with that, you won’t find the rest worth your while.

You may, however, agree with all that in principle, but have doubts about fighting this battle at all costs. Is being stubborn about it just an irrational, emotional reaction to our current powerlessness? Will it hurt Democrats’ chances in other battles—over legislation, confirmation of Cabinet nominees, or possible future Supreme Court nominees? Shouldn’t we pick our battles? Is this the one we want to fight? I will show you, through detailed answers to all relevant questions, that the filibuster is absolutely the only rational strategic choice.

Can we reject a nominee without a filibuster?

No. There are 52 Republican and 48 Democratic senators (including two independents who caucus with Democrats). There is no reason to believe any Republican would vote to reject Gorsuch. Nobody questions Gorsuch’s qualifications, and his ideology is acceptable to all 52 Republicans. Senators rarely vote against justices nominated by presidents from their own party. It happened only four times in the nominations of the eight sitting justices. Democrat Ben Nelson voted against Elena Kagan. Lincoln Chafee was a Republican when he voted against Samuel Alito, but he later became a Democrat. Only two Republicans voted against Clarence Thomas, whose qualifications were more in doubt and who was accused of sexual harassment. To be sure, the Senate rejected Robert Bork in 1987, but he was so extreme he believed segregated schools were constitutional, and was deeply tainted by Watergate. Besides, no current senators are as centrist as any of those who crossed party lines in the past to reject nominees.

Can Democrats be united enough to sustain a filibuster?

Why not? It takes 60 votes to invoke cloture, so only 41 out of 48 Democratic senators are required for a filibuster. Most or all vulnerable Democrats (those up for reelection in 2018 in red or purple states) can sit this out. (For what it’s worth, I think most of them would do better if they showed a spine. But just by pure arithmetic, they are not required to take one for the team.)

Can Republicans “go nuclear”? What does it mean?

Yes, unfortunately, they can. Filibuster is not in the Constitution, nor in any statute. It’s a rule internal to the Senate. It can be changed (sort of, I’ll skip the arcane details of no practical consequence) by a simple majority. We know that because Democrats did it in 2013 for all other Judicial and Executive Branch appointments. If Mitch McConnell wants to extend that rule change to Supreme Court appointments, there is no reason he wouldn’t be able to do so. The reason this is nicknamed the “nuclear option” is that senators have been reluctant to reduce the power of the minority, knowing that they are likely to end up in a minority themselves sooner or later. Also, a power grab by the majority may be seen as unpopular. Both considerations are weaker than they used to be, as neither side trusts the other that they won’t “go nuclear” when they have a chance, and there is hardly any evidence that voters care about procedural nuances.

Wouldn’t it be prudent to save the filibuster for the next nomination?

This is the key argument advanced by those reluctant to use the filibuster now. I’ll refer to them — or should I say to you, since you are likely to be one of them if you are reading this — as “skeptics”. The idea, as I understand it, is that this nomination is not changing the balance of the Court because it was Justice Scalia’s seat, and Gorsuch is ideologically similar to him. But it will be much worse, skeptics say, if Justice Ginsberg or Justice Breyer (or even Justice Kennedy) dies or retires, and Trump nominates someone very right-wing instead. Thus, skeptics argue, we should keep the filibuster available for the next battle, when the balance of the Court is truly at stake. This argument has several parts, and each of them is wrong. Let’s examine them one by one.

Is “Scalia’s seat” a meaningful concept?

No. There is no (and never was) any tradition of nominating justices to match the ideology of the justice being replaced. We’ve seen many wild swings, such as when George H. W. Bush replaced Thurgood Marshall, the most liberal justice at the time, with Clarence Thomas, one of the most conservative justices ever. Obama’s nomination of the moderate Garland was probably a compromise, since a Republican-controlled Senate was unlikely to confirm a more liberal nominee, but he would have shifted the balance of the Court in a significant way. Most likely, he would have replaced Kennedy as the pivotal justice — the one whose vote usually decides when the Court is split 5–4. Therefore, preventing Obama from filling the seat was very consequential for judicial outcomes. If you think of this as “Garland’s seat” instead of as “Scalia’s seat,” which is just a different frame for the same reality, then this is the nomination that tips the balance of the Court.

Isn’t the next vacancy more important?

Every Court vacancy is equally important. (Well, the Chief Justice is a bit more important than the others, but that’s not a vacancy expected to occur anytime soon.) Of course, if Gorsuch is seated, the next vacancy, should it occur under Trump, would almost certainly (given who the three oldest justices are) move the pivotal position from moderately conservative Kennedy to the staunchly conservative Chief Justice Roberts, thus making it the most conservative Supreme Court in the memory of almost anyone alive. That’s a big deal, but so is the present vacancy. Ask yourself: if this vacancy wasn’t a really big deal, why would Republicans have pursued the obstruction strategy? It carried a great political risk.

The biggest difference, though, is that the present vacancy already exists, while the next one is speculative. Yes, Justice Ginsburg is almost 84, but Justice Stevens served until he was 90. It is not a certainty that Trump will get to fill the next vacancy. (Also, see below about possible changes in the Senate makeup after 2018.)

Can we save the filibuster for the next time?

No. Let’s look at it step by step, but in reverse — starting from the endgame, when Republicans end the filibuster. Or maybe they don’t, so there are two possible endgames.

Suppose they do end the filibuster. When do they do it? After Democrats have staged one (or at least credibly threatened to do so). This is the scenario many expect: Democrats filibuster, Republicans change the rules, and confirm the nominee anyway. If this is the reaction to the filibuster you expect, there are two choices every time a nomination comes up, with their associated outcomes: (1) Democrats filibuster and the nominee gets confirmed, and (2) Democrats don’t filibuster and the nominee gets confirmed. The outcomes are the same, but in case (2), Republicans are forced to make the choice to change the rules, and they won’t be able to obstruct the next time a nomination comes up with a Democratic president and a Democrat-controlled Senate. In other words, approximately the same in the short run, but with some possible long-run gain to Democrats from filibustering. In any case, no disadvantage to filibustering.

Wait, you may say, but what if I’m risk-averse and pessimistic? What if I believe Republicans will be in control more-or-less permanently? The answer is, you still gain absolutely nothing by not filibustering. Every Republican nominee just gets confirmed without a real fight. You never stop any of them.

Now suppose Republicans fold when Democrats call their bluff — suppose they chicken out and don’t end the filibuster. Remember, it only takes three dissenting votes with the current Senate makeup. I wouldn’t bet on this happening, but it is possible. Then what outcomes happen with Democrats’ two choices? (1) They filibuster, and the nominee is not confirmed; or (2) they don’t filibuster, and the nominee is confirmed. Clearly different and, obviously, filibustering is preferred. And the option to filibuster remains!

Of course, when Democrats decide on their action, they won’t know what the Republican reaction will be. But as long as there is any possibility that Republicans would balk at the rule change, Democrats are better off filibustering: they may do better that way, or they may do the same, but they cannot do worse in any scenario. (In game-theory parlance, filibustering is the dominant strategy. You should always choose a dominant strategy if it exists.) Even if you think there is 99% chance that Republicans will change the rules, you still have 1% chance to block the nominee with a filibuster and exactly zero without it.

Admittedly, if Democrats block one nominee, Trump will nominate another, and we go through the same game again. Eventually, Republicans probably change the rules even if they don’t do it the first time, so we are back to “same outcome”. Oh, but it is not the same at all! First, with every round, Democrats run the clock a little. The goal could be to run it until the 2018 elections and try to take back the Senate. Second, every time Republicans acquiesce to a filibuster, they signal that they consider it costly to change the rules — and that means even more reason to keep forcing that choice upon them.

By now you should be convinced that there’s nothing to lose from filibustering, at least when fighting over a single seat. Does this hold even if more seats open during Trump’s term? Yes, the extension is trivial. Republicans can change the rules whenever they want. They won’t do it if a filibuster isn’t threatened, but that’s because they get all they want. Never using a filibuster that’s available is, for all practical purposes, no different from the filibuster not being available at all. The only possible remaining question is, would Republicans be less likely to change the rules next time if Democrats forgo the filibuster this time? Believing that is extremely naive. I cannot fathom any rational reason Republicans would behave that way, or any rational reason Democrats would believe Republicans would behave that way. Even in more normal times, there’s no political goodwill created by forgoing the filibuster, for the simple reason that Republicans don’t have to allow it. And if no goodwill is created, why expect it would be honored?

But will this hurt any deals we may achieve on other votes?

What deals? Maybe you think letting Republicans confirm Gorsuch would make moderate Republicans more likely to join Democrats in rejecting particularly bad Cabinet nominees (like Sessions), or cooperate with Democrats on saving the Affordable Care Act, or Medicare, or whatever important legislation the next big fight will be about. None of that will happen. Republican senators will vote the way they believe will help them avoid primary challenges and win elections. Some of them may reject egregiously bad nominees (like DeVos) to show their independence. On legislative matters, filibuster still exists and Democrats can fight the same battle. For many reasons, both parties are more reluctant to get rid of the legislative filibuster; Democrats didn’t try it in 2013. I can’t think of any reason for Gorsuch nomination fight to matter for the fate of the legislative filibuster. In the end, the argument from the last section remains: forgoing the filibuster creates no political goodwill and thus is not a valuable consideration for any deal-making.

What is the possible effect of the next Congressional election (2018)?

When considering a potential next open seat, keep in mind that, if it happens, it may happen after the mid-term election, so the composition of the Senate may change. Also, Senators’ actions in the current nomination fight may affect their reelection chances (although that may be a dubious proposition, given that Republicans’ total obstruction of Garland’s nomination didn’t seem to hurt them in 2016).

What is more likely, a Democratic gain or a loss? Sitting president’s party usually loses seats in midterm election, but more Democratic senators are up for reelection this time, especially in swing states. A lot will depend on Trump’s popularity, as midterm elections are often seen as a referendum on the President. How the senator’s stance affect their reelection chances will then also depend on Trump’s popularity. If Trump is unpopular, senators more fiercely opposed to him should fare better.

If Democrats gain seats in 2018, they may take control of the Senate or make the Republican control even thinner than it is now. If they take control, they don’t need to filibuster, so an attempt to “save” the filibuster may turn out to be irrelevant. If they improve without taking control, they will be in the same position as now, more or less. Note that gains are realistic if Trump is unpopular, so Democrats may be more likely to gain control of the Senate if they have fought hard, which means if they have filibustered Trump’s nominees as long as Republicans allowed.

If Democrats lose seats, not much changes, but a filibuster becomes more difficult to mount, as it requires a greater unity of the remaining members of the caucus. In case of a catastrophic loss (8 or more seats), filibuster becomes impossible. Note that both the best and worst possible outcomes result in the filibuster becoming irrelevant, while for the intermediate outcomes, not a lot changes.

The bottom line

If Democrats don’t filibuster now, Gorsuch will be confirmed, and nothing will be gained for the future. If they do filibuster, there is some chance of stopping Gorsuch, and even a small chance of keeping the seat open until the midterm election. If Trump is unpopular in 2018, Democrats may be in the position to take control of the Senate, and a record of principled fight against Trump (which includes the fight against his nominees) may help in achieving that goal.

There is also the intangible gain from fighting a good fight. I think it is immensely important right now, and the base sorely needs it, but that’s beyond the scope of this article. As I said, I did not set out to persuade you emotionally, but merely to prove to you rationally that your emotions, already telling you to resist, are not deceiving you.