Why Filibustering Neil Gorsuch May Not Pay Off In The Long Run

The option could haunt Democrats if someone, like Justice Ruth Bader Ginsburg, were to retire.

Progressive groups appear delighted that Senate Minority Leader Chuck Schumer (D-N.Y.) on Thursday signaled to Democrats that they should filibuster Neil Gorsuch, President Donald Trump’s nominee to the Supreme Court.

After the senator announced his plans to vote “no” on the nominee, who sat through 20 hours of confirmation hearings this week, advocacy groups sent him a letter expressing their disapproval for anything short of an all-out war.

“Anything less than a full commitment to resistance, including a filibuster of Judge Gorsuch, would be a betrayal of the communities you represent,” the groups, including the likes of NARAL Pro-Choice America and Credo Action, wrote in a letter addressed to Schumer. The organizations were none too pleased by reports that some Democrats are looking to cut a deal on Gorsuch.

Many of these groups have for weeks been calling on Democrats to oppose Gorsuch at all costs. Some are even keeping tabs on how many Democratic senators are demanding that Gorsuch meet the 60-vote threshold to advance his nomination to a full Senate vote.

“Right now, Democratic voters are definitely angry and motivated, and it’s the job of Democrats in Congress to keep showing those voters what they ought to be angry about — and that their representatives are fighting as hard as they possibly can,” commentator Paul Kane wrote in The Washington Post.

But holding firm on Gorsuch carries real risks for Democrats. If Senate Majority Leader Mitch McConnell (R-Ky.) is pushed over the edge to get rid of the current rules — for which he only needs a simple majority — then all bets are off. Gorsuch would be confirmed, also with a simple majority vote.

If that’s how things go down, Democrats would have zero leverage in the event of a new court vacancy — if, say, Justice Ruth Bader Ginsburg retires.

“If you think things with the Supreme Court are bad for progressive[s] now they can get much, much worse,” Richard Hasen, a longtime Supreme Court observer who teaches law and political science at the University of California, Irvine, wrote in a blog post. “Better to save the firepower for that fight.”

If you think things with the Supreme Court are bad for progressive[s] now, they can get much, much worse. Richard Hasen, political science professor at University of California, Irvine

Conservative activists are spending heavily on pro-Gorsuch ads in red states where Democratic senators are up for re-election. The particularly vulnerable ones, like Sen. Joe Manchin (W.Va.), are pushing for an up-or-down vote on Gorsuch.

“We’ve got to find a way to preserve this Senate,” Manchin told Yahoo News’ Katie Couric on Thursday, adding that getting rid of the filibuster “is not what the Founding Fathers decided for this body.”

If confirmed, Gorsuch would bring to the Supreme Court back to the ideological balance that existed while the late Justice Antonin Scalia was on the bench. The court has carried on with only eight members since February 2016.

Schumer’s opposition to Gorsuch, and his threat to filibuster him, is also inciting conservatives who are determined to get the judge confirmed — Senate norms and traditions be damned.

“There is no reason for any Senate Republicans to entertain this foolish deal,” Ed Whelan, a Gorsuch supporter who has written extensively on his nomination, wrote in the National Review Online. “Such a deal would give Senate Democratic leader Chuck Schumer a preemptive veto over the next Supreme Court nominee.”

If Schumer’s threat works, he wrote, Senate Republicans might as well also get rid of the filibuster for Supreme Court nominees. After all, Democrats indicated they would have done the same if Hillary Clinton had been elected president.

“It makes no sense for Republicans to allow a double standard under which Supreme Court nominees of a Republican president are subjected to a filibuster but Senate Democrats, when back in the majority, would be free to abolish the filibuster for Supreme Court nominees of a Democratic president,” Whelan wrote.



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