A couple of months ago, I wrote about why Senate Democrats shouldn’t filibuster President Trump’s Supreme Court nominee. I argued that whoever Trump chose to nominate (he nominated Neil Gorsuch) wouldn’t be much different than Antonin Scalia and that a filibuster might encourage Republicans to use the oft-mentioned “nuclear option.” Clearly Chuck Schumer doesn’t read this blog because 41 Democrats have announced they’ll oppose Gorsuch’s nomination on the procedural vote later today, enough to sustain a filibuster.
I get why Democrats feel they need to pursue this strategy. First and foremost, they want to play to their base. Because most liberals and progressives absolutely despise Trump and all people associated with him, Senate Democrats need to at least give the appearance of fighting him at every turn. Democratic voters are also still livid at Republicans for what they did to Merrick Garland, so anything short of returning the favor would be a unacceptable. Second, acquiescing on Gorsuch would give Trump a much needed win that could help turn around his dumpster fire of a presidency. Dragging out the confirmation process not only prevents a Trump win, but also tends to hurt the president more than it does the opposition party. Finally, using rhetoric similar to what Mitch McConnell used last year regarding confirming a justice during an election year, key Democrats have said that the Senate shouldn’t confirm a justice while the President is under investigation for collusion with Russia.
But there are a number of reasons why the filibuster doesn’t make sense in this situation. First of all, Democrats are picking the wrong battle. As I mentioned above, Gorsuch was nominated to replace Justice Scalia, a staunch originalist and lodestar of the Court’s conservative wing. Confirming Gorsuch would simply restore the conservative majority on the Court that has reigned for decades. And though the conservative majority isn’t ideal for Democrats on issues like abortion and gun control, remember that a number of liberal rulings—e.g. Obergefell v. Hodges and National Federation of Independent Business v. Sebelius—came out of the Court while Scalia was still alive. Additionally, Gorsuch is an extremely qualified nominee with a surprisingly moderate record on immigration and employment discrimination, which could make him an ally against Trump on issues like the travel ban. Democrats should instead save this fight for when it’s time to replace a liberal justice like Ruth Bader Ginsburg or Stephen Breyer because a conservative replacement would swing the judicial median much further to the right.
Perhaps more importantly, using the filibuster may embolden Senate Republicans to pursue the “nuclear option,” changing the Senate rules to eliminate the filibuster on Supreme Court confirmation votes. Not only would Republicans then be able to confirm Gorsuch with a simple majority, but all future Supreme Court confirmation votes would also only require a simple majority. If Trump is still president and Republicans still control the Senate when Ginsburg or Breyer need to be replaced, Democrats won’t have any leverage over who Trump picks to replace them.
Moreover, although McConnell has assured that the legislative filibuster would be safe from any rule changes, using the nuclear option may create fallout that could spill over to controversial legislative issues, leading to the demise of the filibuster entirely. Though often abused, the filibuster is part of what makes the Senate “the world’s greatest deliberative body” because it gives the minority party a key bulwark against the majority party. Absent the filibuster, the Senate just becomes a smaller version of the House, as Senator Joe Manchin (D-WV) explains:
People who have been here for a long time know that we’re going down the wrong path here. The most unique political body in the world, the United States Senate, will be no more than a six-year term in the House.
It’s important to note that Senate Democrats already eliminated the filibuster for Cabinet nominees and lower level judicial appointments back in 2013 because of Republican obstructionism. Some Democrats have expressed buyer’s remorse over that rule change because it set the precedent to change Senate rules in the face of obstruction over controversial issues rather than seek to compromise (which, in a way, makes this debacle Democrats’ fault, although had Republicans held hearings for Garland and confirmed him instead of gambling the seat on the election, we wouldn’t be worrying about this right now).
I anticipate that Republicans won’t have enough votes to overcome the filibuster and that McConnell will change the rules to eliminate the filibuster on Supreme Court nominations so Gorsuch can be confirmed. As for doing away with the filibuster entirely, I don’t think that’s imminent, but the next time a controversial piece of legislation comes up in the Senate, don’t be surprised if McConnell threatens to go nuclear once again.