Republicans Should Want Democrats to Filibuster Gorsuch

Appellate Court Judge Neil Grouch, President Trump’s nominee to replace Antonin Scalia on the Supreme Court, sailed through his nomination hearings last week. Gorsuch was so squeaky clean in his hearings that even the most liberal media outlets such as MSNBC claimed there was not a glove laid on him. Yet despite having absolutely nothing on Judge Gorsuch to hold up as reasonable evidence to oppose the nomination, Democrats are insistent they will attempt to filibuster Gorsuch’s nomination. Senate Minority Leader Chuck Schumer (D-New York) claimed that “It’s going to be a real uphill climb for him to get those 60 votes.”

Quick civics lesson to explain the situation: current Senate rules require 60 senators to vote in favor of a Supreme Court nominee in order to avoid a filibuster. A filibuster is where the opposition party to what is being voted on takes the floor and speaks nonstop in attempts to block the vote from taking place. If there are 60 votes for a nominee or legislation, it cannot be filibustered. The only exception to this is what is know as the nuclear option. The nuclear option is where the Senate holds a vote to change Senate rules and “nuke” filibuster so that from then on it would only require a simple majority to pass the nomination or legislation. In 2013, then Senate Majority Leader Harry Reid (D-Nevada) used the nuclear option to nuke the filibuster for executive nominees and judicial nominees excluding the Supreme Court. So the filibuster is still a tool that can be used for Supreme Court appointments, but probably not for long.

Republicans hold the majority with 52 votes, requiring at least 8 Democratic Senators to vote for Gorsuch to put him on the court without the nuclear option being used. Currently, only 2 Democrats have come out in support of Gorsuch, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia. 29 Senate Democrats have come out publicly in favor of filibustering Gorsuch and 3 have indicated opposition of Gorsuch but have not indicated support for a filibuster. So only 6 out of the 17 Democrats who have not stated a position would need to support Gorsuch to avoid a filibuster attempt. This is not impossible but it looks as if Gorsuch is going to come up a couple of votes short of the 60 vote margin.

Is it really aggravating that Democrats will not vote for a nominee that is obviously qualified and squeaky clean as Neil Gorsuch? YES! But as aggravating as it is there is no doubt in my mind that in long run it will be a win for those in favor of originalism… we should actually be encouraging Democrats to try to filibuster Neil Gorsuch’s nomination.

Why??

Placing Judge Gorsuch does not affect the balance of the court. Gorsuch, an originalist, would be replacing another originalist, Antonin Scalia. This leaves the court with the balance it had before: 4 originalists (Thomas, Alito, Gorsuch, and Roberts. Although calling Chief Justice Roberts originalist is very generous in my opinion but ignore that for now), 4 progressives (Ginsburg, Kagan, Sotomayor, and Breyer), and one swing vote (Kennedy). Everyone knows that because of this the fight for the soul of the court will come with the next nomination. The most likely person to be replaced next is either Justice Ginsburg (age 84) or Justice Kennedy (age 80). An originalist replacement for either of these Justices would swing the balance of court dramatically.

With a court altering nomination looming, Democrats would be smart to play the long game with the filibuster. Democrats have not been able to come up with a substantial argument for keeping Gorsuch off the high court other than policy preferences. This fact makes it easy for Republicans to “nuke” the filibuster because Democrats are basically signaling that they would filibuster any nominee unless he or she has a far left legal philosophy. Democrat opposition to a judge with a spotless record forces Republican traditionalists such as John McCain (R-Arizona) or Susanna Collins (R-Maine), who would usually not be in favor of the nuclear option, to vote to nuke the filibuster.

It seems to me the smartest move would be for Democrats to put Gorsuch on the court and hold the filibuster for the next nomination. Holding the threat of a filibuster for the next nomination would possibly do one of two things:

1. Force Trump to nominate a judge more moderate than Gorsuch. Trump kept his promise by nominating a Scalia-type justice to replace the late great Antonin Scalia. But with the threat of a filibuster looming President Trump might feel inclined to nominate a candidate much more in the vein of Justice Kennedy.

Or

2. Give Democrats the chance to try to pull a couple of Republicans into either opposing the nominee for the next vacancy 0r convince a few Republicans to oppose the nuclear option the next time around. It is unlikely that the next appointee to the high court will have as clean of a record as Neil Gorsuch.

By using the filibuster now, Chuck Schumer is betting on there not being a new vacancy until at least after the 2018 midterm elections where he hopes to retake the majority in the United States Senate. But with a really tough Senate map waiting for Democrats in 2018, it is not a wager I would take if I was in his position.

Holding the onto the filibuster would be smart for Democrats, this is why Republicans should encourage a filibuster attempt. If the Democrats use the filibuster this time around, Senate Republicans will nuke the filibuster and provide a clear path for President Trump’s next appointment. Knowing President Trump for his next Supreme Court pick cannot be pressured into nominating a very moderate judge who would garner 60 votes would undoubtedly be a win for conservatives.