Last week, the Washington Post recommended that Democrats should make a deal on Gorsuch by not filibustering his nomination and instead preserving the 60-vote threshold for a future nominee. Yesterday, reports surfaced about efforts to find a last-ditch deal.
Here are five reasons that a deal doesn’t make sense for Democrats.
First, Judge Gorsuch’s record. I agree with the Washington Post that “the national interest requires that Democrats judge Mr. Gorsuch ‘on the merits.’” Republicans and Democrats agree that, on the merits, Judge Gorsuch’s record demonstrates that he is a judge in the mold of former Justice Scalia. As Justice Scalia once noted about his own confirmation, “I was known as a conservative then, but I was perceived to be an honest person. I couldn’t get 60 votes today.” The same could be said of Judge Gorsuch.
In fact, academic studies predict that Judge Gorsuch would be even more conservative than Justice Scalia. According to one study, if confirmed, Judge Gorsuch “might be the most conservative justice on the Supreme Court.” Another forecast that Judge Gorsuch would be the most conservative other than Justice Thomas—and that he is one of the most conservative among the candidates hand-selected by the ideologically-driven Federalist Society and Heritage Foundation. A third report looked at campaign contributions before becoming a judge and estimated that Judge Gorsuch is more conservative than 87% of all other federal judges.
Given Judge Gorsuch’s judicial ideology and record, if Democrats do not insist on a 60-vote threshold now, then when would they?
Second, this is not “Justice Scalia’s seat,” and every nominee must be evaluated regardless of whom they would replace. Some argue that because Judge Gorsuch would replace Justice Scalia, his confirmation would not change the balance of the court, and therefore, Democrats should save the 60-vote threshold for a later vacancy, when the shift may be greater. But the court is currently divided 4-4 among Justices appointed by Democratic and Republican presidents, so whoever fills this vacancy will be the one who determines the balance. Furthermore, Democrats have grave concerns regarding the direction and decisions of the Supreme Court when Justice Scalia served on it—from gutting the Voting Rights Act in Shelby County v. Holder to allowing corporate money to flood our politics in Citizens United v. FEC—so maintaining this composition should be cold comfort. Instead, Democrats must evaluate Judge Gorsuch’s ideology and fitness to serve, independent of which seat he would fill.
Third, no one knows when the next Supreme Court vacancy will occur. While some recommend that Democrats wait to insist on a 60-vote threshold when a conservative nominee would replace Justices Kennedy, Ginsburg, or Breyer, this assumes that one of these vacancies will occur in the next three years. I was in charge of judicial nominations for President Obama for more than four years, and although I served up to four times longer than the other three people who held this position during his presidency, I was the only one who did not have a Supreme Court vacancy during my tenure. There is simply no predicting when a vacancy may occur, and Democrats should not make a deal for an event that may never happen.
Fourth, any deal to preserve the 60-vote threshold may be short-lived. The composition of the Senate may be different in 2019, so any deal may have a shelf life of only a year and a half—and, again, a vacancy may not even occur in that window.
Fifth, there is no guarantee that not filibustering today would lead to a more consensus nominee next time. The most common argument for not insisting on a 60-vote threshold today is that Republicans may respond by changing the Senate rules, and if a future nominee can be confirmed by a simple majority vote, then that nominee may be even more extreme. But it is not a given the Republicans have the votes to change the rules. Even if they do, given Judge Gorsuch’s own extreme record, if Democrats do not hold him to a 60-vote threshold now, that, too, could embolden President Trump to push the envelope next time and nominate someone even more ideological—not that there is much space on that side of the spectrum. So the best case scenario in a deal may be that President Trump nominates another Gorsuch next time, which brings me back to the first point: one Supreme Court Justice with Gorsuch’s record would be concerning enough; two would be unacceptable, not something to “deal” for.
The Washington Post argues that if Democrats insist on a 60-vote threshold, the standoff could end in three ways: eight Democrats support Judge Gorsuch’s nomination; Republicans change the rules and eliminate the filibuster; or the parties strike a deal.
This ignores the fourth possible resolution: President Trump withdraws this extreme nomination and follows the Constitution, which provides for the advice and consent of the Senate. Thus far, he has sought the advice only of ideological interest groups, so the burden should be on him to meaningfully consult Democrats—not on those Democrats to make a deal.