Filibuster Gorsuch

I’ve heard various arguments as to why Democrats should not filibuster Gorsuch and I am entirely unpersuaded.  This, from a PS professor, for example:

All of this argues for careful consideration of both short- and long(er)-term goals for the Democrats.  If Republicans go nuclear to confirm Judge Gorsuch, the fallout would likely be very bad for Democratic Party and progressive interests in the not-so-faraway future.   Although the immediate protests by progressive interests don’t acknowledge it, there are far more conservative potential nominees [emphasis mine] for Trump to choose from should he have the opportunity to make a second or subsequent Supreme Court pick during his term.   Rabid opposition from Democrats that culminates in the elimination of the 60-vote cloture threshold for Supreme Court nominees will play right into conservatives’ strategy of moving the Court further rightward than it was even when Scalia was on the bench.  To be sure, eliminating the 60-vote threshold could pay dividends in the longer term, if Democrats are able to take back and hold the Senate.  But the party’s 2018 prospects for regaining control are tough, and the timing of Supreme Court vacancies is difficult to predict.

Democrats must think long and hard about setting up a nuclear confrontation in the Senate over Judge Gorsuch; simple majority confirmation of Supreme Court nominees could turn out to be far more damaging than a return to status quo ante on the Supreme Court.

I find this idea of not using the filibuster on Gorsuch to save later for a more conservative justice, entirely unpersuasive.  Does anybody really think that if Democrats just let Gorsuch go through, McConnell would happily accept a filibuster of an RBG or Kennedy replacement?  Seriously?  He would surely “go nuclear” then.  Also, no matter how conservative the future nominee, the Democrats actually have a much stronger case for filibustering Gorsuch– this is Garland’s seat!  Also, the idea that there are “far more conservative” potential nominees doesn’t really hold a lot of water.  Yeah, Gorsuch is decent on the 4th amendment, but he is, by all accounts, a very conservative judge.

I was listening to the Slate political gabfest today and they were talking about the difficulty in filibustering Gorsuch because he is such a qualified and well-liked judge.  I disagree.  This filibuster is not about Gorsuch.  The filibuster is about this being Merrick Garland’s seat.  Gorsuch could be the greatest jurist ever and it just doesn’t matter.  As I expected, Seth Masket has written a blog post nicely outlining why Democrats should filibuster.  Here’s my favorite parts:

Claims by Sen. Mitch McConnell that the American people will not tolerate Democratic obstruction on a Supreme Court nomination are as laughably ironic as they are false. Voters may claim in surveys that they care about procedural norms and fairness, but there’s scant evidence that they actually vote that way, and the 2016 election provides a perfect example. Republicans’ refusal to even consider President Obama’s nomination of Merrick Garland to the Court last March was a massive norm violation; voters nonetheless kept Republicans in charge of the Senate…

The Senate, perhaps more so even than the House, is governed by procedural norms. The idea that a president’s pick for the Supreme Court deserves a hearing, regardless of party, is one of those norms. Republicans violated that norm last year. If a major norm violation goes unpunished, the norm no longer exists. This will mean that future Court vacancies will go unfilled when different parties control the White House and the Senate. The Court will rarely contain nine members, and its capacity will be reduced. McConnell and his fellow Senate Republicans signaled last year that they find that scenario preferable to their party losing a seat on the Court.

Those urging Democrats to accept that they have lost this seat and simply conduct a normal judicial appointment process are asking Democrats to be the grown-ups. They’re telling Democrats to take a hit in the name of preserving an important democratic institution. But if a major norm violation goes unpunished, that institution has already been damaged. If Republicans pay no price for this transgression, it will signal that this can be done again, and it will. [emphasis mine]

Should Democrats filibuster this nomination, the Republican majority might well decide to deploy the “nuclear option” and abolish the filibuster on Supreme Court nominations altogether. Trump has already publicly urged McConnell to do just this. But if Republicans are already credibly threatening to abolish the filibuster, then it really no longer exists. What’s the point for Democrats to give up the filibuster when it matters but wait for a time when McConnell lets them do it? What concessions do Democrats win for not deploying a weapon in their arsenal?

Yep.  Plus more good arguments at the site.  So, yes, filibuster Gorsuch.


About Steve Greene
Professor of Political Science at NC State

One Response to Filibuster Gorsuch

  1. R. Jenrette says:

    Democratic voters need action from the Senate Democrats. If the Senators don’t act, it will be seen as weakness by their base and the steam may go out of the protests. Why rile things up only to have the one group of Democrats who can act ignore that energy and fail to act aggressively?
    In politics, it’s better to be seen as a fighter even if the battle is lost than as a non combatant.

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