Hold Your Fire, Democrats

Why Democrats should wait for the next Supreme Court nomination to really bring down the house.

Democrats were full of righteous anger on Wednesday morning after President Trump announced his nominee to the Supreme Court. On Tuesday night, before the nominee had even been officially announced, Congressional Democrats organized a protest outside the Supreme Court to denounce the nominee, comically featuring signs reading “STOP ______” and “OPPOSE _________.” Their opposition was certain—the only thing they lacked was a nominee to actually oppose, so that they could write in his or her last name. By the end of the evening, the signs read: “STOP GORSUCH.”

For Democrats, the nomination of Judge Neil Gorsuch to the Court is deeply painful. After a year of stonewalling the nomination of Judge Merrick Garland in flagrant disregard of the spirit (if not the letter) of the Constitution, Republicans were not punished by voters, but rewarded with control of the Senate and the Presidency. For Democrats, this is an appointment to a stolen seat, and they are not in a mood to play nice.

By Wednesday morning, Senate Minority Leader Chuck Schumer stated that the nominee ought to earn 60 votes to clear the Senate, while other senior Democrats were expressing “serious doubts” or promising filibusters. In response, President Trump told Senate Majority Leader Mitch McConnell in no uncertain terms: “If you can, Mitch, go nuclear.

Such immediate opposition to a Supreme Court nominee is nearly unprecedented. But we live in unprecedented times. And one can hardly blame Democratic Senators for lining up strongly against Gorsuch: as protests across the country day after day are showing, Democrats are angry and eager to cause as much hell as possible for the Trump Administration.

A script is already emerging wherein liberal Democratic Senators, pressured by a furious base, will filibuster Gorsuch’s appointment; Senate Republicans will ‘go nuclear’ to amend Senate rules to ram through the appointment with a simple majority, and already-enfeebled Democrats will — amazingly — end up with less political leverage than they began with.

But Democrats should think twice before launching all-out war on Neil Gorsuch’s nomination. Here’s why: every nomination to the Supreme Court is consequential, but this nomination will matter far less than the next one.

If confirmed to replace the late Justice Scalia to the Court, Judge Gorsuch will not significantly change the ideological balance of the Court. While slightly to the right of Justice Scalia, adding Justice Gorsuch to the Court will not alter the 5 to 4 conservative-liberal split that has defined the Court, with Justice Anthony Kennedy acting as the key swing vote. Confirming Judge Gorsuch would only continue that status quo.

But if President Trump has the chance to make another appointment to the Court, he will have the chance to create a rock solid six-vote conservative majority. And consider the facts: Justice Kennedy, the key swing vote, is 80; Justice Ginsburg, the liberal lion, is 83; Justice Breyer, another staunch liberal, is 78. Horrifying as the notion may be, it is reasonable to suspect that President Trump may have another vacancy to fill on the Court in his current term. When that nomination comes, it will have the potential to fundamentally transform the Court from a split bench to a deeply conservative branch of government, perhaps for decades.

If Democrats are without the filibuster when that comes, the consequences of such an appointment would be enormous, far-reaching, and devastating for the left. Absent real resistance from Democrats, President Trump would be able to appoint as conservative a justice as he pleases, which could sail through confirmation before a Democrat could say ‘excuse me,’—and usher in an unprecedented era of conservatism on the Court. All told, the experience would be a political catastrophe of monumental proportions for Democrats and the country.

It doesn’t have to be like this. By playing nice now, holding their nose, and allowing Gorsuch’s confirmation to go to a vote, Democrats will be able to prevent a worst-case scenario future appointment, while ending up no worse off than they were before for the time being. If Democrats save the little political leverage they now have for the next appointment, they will have a better shot at ensuring that another Anthony Kennedy-style swing justice joins the bench in the future, rather than a muscular and unhinged six-justice conservative bloc.

This will be enormously hard for Senate Democrats politically. Rank and file Democrats are screaming for blood, and Capitol Hill phone lines are lighting up to demand action, protest and resistance at every turn. When the Senate Banking Committee, which includes Senator Elizabeth Warren, voted unanimously to confirm Ben Carson as HUD Secretary, the fury and outrage from Democrats was swift, and they were not particularly interested in the tradition of confirming Cabinet nominees if there is no strong reason not to do so. Democrats will want their Senators to vote against Gorsuch, they will want a filibuster, and they will want a show—even if it leaves them far worse off in the future. For liberal Senators in safe seats, and for any Democrats looking ahead to 2020, the temptation will be great.

But the stakes couldn’t be any higher. In a time that may decide the course of American politics in the 21st century, how the Democratic party handles this nomination may decide whether they are guided by knee-jerk, rash resistance to President Trump, or a savvy opposition that looks not just to resist, but to win.