Do Democrats Face a ‘Nuclear’ Dilemma on Neil Gorsuch?

During his speech and testimony yesterday, Judge Neil Gorsuch, Donald Trump’s nominee to fill Merrick Garland’s, I mean, the late-Antonin Scalia’s seat on the Supreme Court, didn’t ruffle any feathers.

He talked about his family and his daughters raising chickens for the county fair. He also noted that he has been in the majority on 99% of the cases he’s heard as a judge on the Tenth Circuit Court of Appeals. He also reminded us that his first decision to go up to the Supreme Court was affirmed 5-4, but with Justices Thomas and Sotomayor on his side and Justice Stevens and Scalia against. Anyone with this record and quaint history couldn’t be the villain liberals make him out to be.

The fact remains that Judge Gorsuch is, as a jurist, as right-wing as they come. As his decision in Hobby Lobby suggests, he support broad religious liberty exemptions that would carve out such big doughnut holes in LGBTQ protections (including marriage equality) as to make those protections meaningless. He appears to doubt the notion that federal agency experts — like scientists and climate policymakers at the EPA — should be given the deference they need to do their work. He has no sympathy for the plight of transgender students.

So what are we to do about it? There are 52 Republicans in the Senate, all of whom are suddenly committed to up-or-down votes on Supreme Court nominees. The Democrats cannot refuse to hold hearings like the Republicans did for Merrick Garland. And not a single Republican has given any indication that he or she would vote against Judge Gorsuch on the Senate floor. The only tool left that could stop the nomination is the filibuster.

Contrary to popular lore, the filibuster was not part of the procedures for the original Senate. In fact, according to Sarah Binder of the Brookings Institute, the Senate and House were meant to run basically the same. Both chambers had a “previous motion” rule that allowed a simple majority to cut off debate on a particular bill.

The House kept its rule. The Senate, on the recommendation of then-Vice President Aaron Burr, who had just been indicted for murdering Alexander Hamilton, told Senators that they should adopt a series of changes to “clean up” their rule book. Getting rid of the simple majority “previous motion” rule was one of those changes.

Even then, no one filibustered. Then came slavery, and civil service reform, and election law, and civil rights, polarizing issues that brought out the divisions within and between the parties and encouraged senators to look for any procedural trick to stop the majority. Then, in 1917, after Republicans used the filibuster to stymie President Woodrow Wilson’s attempt to arm merchant ships before U.S. entry into World War I, Democrats branded Republicans as obstructionists weak on national security and pushed through what is known as a “cloture” rule — a procedure for ending debate — that required a supermajority to pass. As Ms. Binder describes in her book (co-authored with Steven S. Smith), Politics or Principle? Filibustering in the United States Senate, this was the result of hard-nosed bargaining, not a desire to protect minority rights or civility norms in the Senate.

And just as the filibuster came into use, it can just as quickly disappear.

Democrats are in a bind when it comes to Neil Gorsuch. If they filibuster now, on a nomination that would not tip the balance on the Court from when Antonin Scalia was still alive, they run the risk of Senate Republicans getting rid of the filibuster for Supreme Court nominees entirely.

That could be a scary proposition for the next nomination fight, when Kennedy’s, Breyer’s, or Ginsburg’s might be the next seat to fill. Replacing one of the Court’s progressives with a radical conservative would be a disaster.

This argument makes sense on first blush, but it’s not a slam dunk. Republicans could just as easily eliminate the filibuster this time as next time. If we presume the 60-vote threshold is on its way out, why does it matter when it goes?

In other words, if the Democrats do not try to stop Judge Gorsuch now, but do try to stop a potential second nominee from Donald Trump, wouldn’t the Republicans just get rid of the filibuster then? In that terrible scenario, Democrats have both folded on Gorsuch and lost the Court, angering their base and endangering progressivism in the process.

Of course, that counterargument imagines a future world that, thankfully, does not exist yet. Maintaining the filibuster for now might be a good strategy, especially if Democrats can retake the White House in 2020 and protect its members in 2018. Breyer, Kennedy, and Ginsburg show no sign of leaving, although as I mentioned in a previous post, the nomination of Judge Gorsuch may be a nod to Justice Kennedy that he could feel comfortable retiring under Trump. If that happens, the Democrats needs the tools to stop a Trump replacement. The precarious position they are in vis-a-vis the filibuster just shows how they really have no good options.