Last Tuesday, Donald Trump nominated Judge Neil Gorsuch to fill the ninth seat on the United States Supreme Court, replacing last year’s nomination for Judge Merrick Garland. Gorsuch’s nomination may fill the shoes of the late Justice Antonin Scalia, who had served thirty years with distinction as the Supreme Court’s conservative lion.
In picking Gorsuch, Trump has found a constitutional originalist who will uphold the original intent of the Constitution and not try to, in the words of many conservative commentators, “legislate from the bench.” Judge Gorsuch is a brilliant, warm jurist who respects all his colleagues and gets along with just about everyone. He even clerked for Supreme Court Justice Anthony Kennedy, who happens to be the Court’s conservative-ish swing vote – it’s not outside the realm of possibility that he could influence some of Kennedy’s own opinions during debates. Gorsuch doesn’t have a controversial paper trail, and he’s got great credentials that any Senator would like. The icing on the cake: Gorsuch is a 49-year old skier from Colorado, which means that the Court’s ninth seat is going to someone who is functionally immortal.
To put it another way, I’m freaking out.
Senate Democrats have publicly expressed interest in two options: the first is to confirm Mr. Gorsuch for the United States Supreme Court in a traditional, albeit grueling series of hearings and debates. The second option is a revival of the same kind of obstructionism that Republicans used on Merrick Garland – an attempt at payback for what Mitch McConnell did just a year ago.
The first option – confirmation – is unpleasant for Democrats, myself included. It means that the Supreme Court is going to get another opponent of abortion and government regulation, and we’ll be handing Donald Trump one of the easiest wins of his Presidency. It also means we’d be caving to the Senate Republicans who held up Merrick Garland’s confirmation for 293 days and proving that Mitch McConnell and Chuck Grassley can trigger a constitutional crisis and come out the other side practically unscathed. While the balance of the Court won’t shift all that much on paper (remember, we’re replacing one conservative with another), Gorsuch is going to be on the bench for somewhere around three decades along with the not-too-old Samuel Alito and Chief Justice John Roberts. Even if the confirmation takes months, it’ll still happen, and the Court will once again be a 5-4 conservative court.
Like I mentioned above, there’s a second option – obstruction. All it takes to stall Gorsuch’s confirmation is a filibuster supported by 41 Senators, thus stopping the Senate’s ability to hold a final confirmation vote. With 48 Senators, the Democrats don’t have enough to stop Gorsuch in the actual vote, but they do have enough to prevent the vote from ever taking place. Yay?
Unfortunately, it’s a lot more complicated than that. Let’s sort this out into two big scenarios in order to get a feel for just how screwed we (the Democrats) are.
SCENARIO ONE: The Filibuster.
While the filibuster will shore the Democratic base and make the Senate leadership look strong in their impassioned defense of Merrick Garland and all the policies Gorsuch opposes, it’s doomed to fail. You may have heard of a little something called the “nuclear option” lately, and if you haven’t, I can explain. The nuclear option is a tool placed in the hands of the Senate majority to remove the power of the filibuster and reduce the Supreme Court confirmation process to a simple up-or-down vote. It’s called the nuclear option because nobody wants to use it until they feel they have to use it. Even if all 48 Democratic Senators support the filibuster (which they won’t if they want to survive, see below), Mitch McConnell can rally his caucus and nuke the filibuster entirely. The Senate Republicans would then be able to conclude Gorsuch’s hearings on schedule and usher him to the highest court in the land with little to no trouble at all.
- A failed filibuster will do little to stop Gorsuch, and the invocation of the nuclear option will mean that the minority party (in this case, the Democrats) will be powerless to stop future Supreme Court nominations in the future. If the Republicans are kind, they’ll reinstate the option at the conclusion of the term, but they won’t.
- The 2018 elections are already looking pretty dicey for Democrats in conservative states – out of the 33 seats up for grabs that November, ten are in states won by Trump and five (the seats held by Tester, Heitkamp, Donnelly, Manchin, and McCaskill) are in reliably red states. If those Senators try to filibuster Gorsuch, they’ll be painting a ginormous target on their backs for their Republican opponents. It’s hard enough getting elected to the Senate if you’re a Democrat in a Republican state, but their races will get demonstrably harder if the airwaves are filled with ads going “JON TESTER TRIED TO BLOCK NEIL GORSUCH’S APPOINTMENT TO THE SUPREME COURT BECAUSE HE TAKES HIS ORDERS FROM NEW YORK COASTAL ELITES LIKE CHUCK SCHUMER.” It’s not a coincidence that those five Senators are open to talking to Gorsuch before making any decisions to oppose him.
- The silver lining here is that we’ll look like we have a spine. It proves a willingness to fight the good fight, even if we know we’ll get a monumental ass-kicking. I’m opposed to this idea because it’ll end in failure, but the sentiment is noble and quite appealing. Plus, forcing McConnell to nuke the filibuster makes him look bad, and it’ll sully Gorsuch’s appointment.
SCENARIO TWO: The not-Filibuster.
By declining to step into McConnell’s nuclear option trap, the Democrats can avoid the destruction of one of the last tools they have left. After all, Trump may get a second Court nomination if Anthony Kennedy, Ruth Bader Ginsburg, or Stephen Breyer decide to retire, and he might pick a nominee that the Democrats can really oppose. In this scenario, Judge Gorsuch will still have to go through months of hearings in front of the Senate Judiciary Committee, but he’ll face no serious battle on the path to becoming an Associate Justice of the Supreme Court (unless he makes a huge gaffe or gets embroiled in some big personal scandal or something). When the time comes, Chuck Schumer will instruct his caucus to “vote their conscience” and stand aside to let the final confirmation vote happen. At that point, the majority of the Democratic caucus will voice their disapproval and vote no, but the nuclear option won’t have to be used. Blue Dogs and at-risk Democrats can save face by voting for the nomination if necessary for their survival.
In summary, not filibustering the confirmation is a political calculation based around saving face for those with tough re-election battles. It’s a crap move, and I only endorse it because it’ll lower the possibility that the Democratic Party will lose five of its most vulnerable Senators. But this wouldn’t be a trap if Chuck Schumer could just back out of the filibuster and avoid a crisis.
The reality is that the Democratic Party base is super pissed, and for a number of very good reasons. The second Trump announced Neil Gorsuch’s name for the court, protesters rolled up to the steps of the Supreme Court with Gorsuch’s name hastily written onto their signs. Gorsuch is an opponent to almost everything I believe in, and his nomination is the direct result of a constitutional crisis imposed and aided by Mitch McConnell and Donald Trump. Even if many members in the Democratic Senate caucus are taking their time with Gorsuch, there are still a bunch who are out for blood. While those who don’t oppose Gorsuch may avoid a bolstered challenge from the right, their conciliatory attitude would open themselves up to primary challenges from liberal candidates who may get angry that their incumbent Senator didn’t fight hard enough against Trump’s pick. This isn’t idle speculation, considering the calls for Senator Schumer and the Democrats to oppose Trump at every possible opportunity.
Sooooo yeah, this is kind of a lose-lose situation. The Senate Democrats can’t filibuster because their filibuster will get nuked, and even if they could maintain their filibuster they’d risk their most vulnerable members. If they don’t officially sanction the filibuster, they’ll save face and political capital, but open themselves up to a bunch of primary challenges. Right now, the proverbial ball is in Chuck Schumer’s court – he gets to make the call as to how Democrats should proceed. He’s got some time – the first hearing for Gorsuch won’t take place for another month – but he’s probably having a pretty crappy time nonetheless.
…at least the nominee’s a nice fellow. Small consolation, but still.
BUTR RANESR ODIKYU VLIE E NOOT.