Now that Senate Minority Leader Chuck Schumer seems to have lined up the votes needed to sustain a filibuster against Donald Trump’s Supreme Court nominee, Neil Gorsuch, the Democrats need to make a decision about whether to deploy that weapon. The Senate Judiciary Committee approved the nomination Monday, voting along party lines, moving the Gorsuch question to the Senate floor.
Without question a Democratic filibuster would be a bold and aggressive move. Given that Gorsuch does not face problems of ethics or competence, such a move would represent Senate Democrats flexing their partisan muscles.
But beyond that, it would symbolize the complete breakdown of the Senate judicial confirmation process, which, since the 1960s, has been devolving into a state of paralyzing partisanship. Partisan voting, partisan attacks, partisan character assassination, and partisan gridlock have all come to define the way the nation handles selecting its nominees to the highest court in the land.
There are some Democrats who will worry about this filibuster. Even if the Democrats were able to force the administration to withdraw the nomination, Senate Republicans might go through with their threat of the “nuclear option,” a parliamentary rule change that would eliminate the filibuster altogether based on a majority vote. Doing so before the vote would allow them to push through the nomination with a majority, or if they did this after the defeat they could seat an even more conservative justice the next time around.
President Trump could push through such a nominee, moving the court even further to the right and undermining the ability of Democrats to count on the justices to protect basic rights and keep intact key government regulations.
But Senate Democrats have good reason to move forward with a filibuster. Indeed, this could turn out to be a defining moment for the party in its struggle against the Trump presidency. Simply in terms of principle, Democrats could rest assured that they would not be the party responsible for breaking the Supreme Court nomination process.
That already happened when Republicans refused to even hold confirmation hearings for former President Obama’s Supreme Court nominee Merrick Garland on the bogus grounds that the “next president,” who would start his term many months later, should decide whom to pick.
Though Garland commanded widespread support in both parties, Sen. Mitch McConnell kept the seat empty.
If anyone was capable of making sure the process did not break down beyond repair it was President Trump. Had he demonstrated some genuine independence and sent a moderate nominee to the Senate, instead of a right-wing judge who pleased the evangelical right and anti-regulatory business conservatives, he could have made it difficult for Democrats to refuse the confirmation.
A moderate nominee, even from this President, would have persuaded many Democrats to vote yes and brought along enough Republicans who would not want to suffer a defeat. Yet Trump made a different choice, tapping a nominee from the “originalist” camp unlikely to move this divided court to the center.
Democrats are often fearful of obstruction and don’t show the kind of temperament as their Republican counterparts. They should learn though, that taking a tough stand has its benefits politically. By denying this victory to the administration, they would hand President Trump a second major defeat at a moment of great vulnerability, while potentially further diminishing the confidence of Republicans who continue to stand by him.
They would intensify the pressure on President Trump to consider a nominee who would undercut some of the Democratic opposition, particularly at a moment that the White House is furious with the Freedom Caucus and right wing of the congressional party for denying him a victory in his recent attempt to undo Obamacare.
Should Republicans pull the trigger and do away with the filibuster, it would not necessarily benefit them in the long-term. Democrats have been arguing for decades that the filibuster doesn’t tend to benefit their party. The Senate is already an institution that favors smaller states, and the filibuster, empowering the minority, has turned the upper chamber into a supermajoritarian body. Given that Democrats tend to come from the more populous states, over time Democrats suffer on this and other issues.
As Democrats learned when they eliminated the filibuster three years ago in the face of GOP foot-dragging on Obama’s Cabinet appointments, the nuclear option will create opportunities as well. At some point in the future, maybe sooner than they thought back in November, Democrats will again have majority control and a Democratic president to work with. Enough Republicans might also shy away from eliminating the filibuster, fearing payback, given their realization of how the tool has been potent for Republicans.
Standing firm against Gorsuch could also further embolden the spirits of Democratic voters and activists who will be key in the 2018 and 2020 elections. Too often congressional Democrats forget that the need to listen to the grass roots is as important as listening to the conventional wisdom in Washington. Very often, voters, and not just the base, want their party leaders to take a stand.
Stopping Gorsuch, shortly after the collapse of American Health Care Act, would be a massive victory for the party and stimulate the kind of activism that pushed many Republicans away from repealing Obamacare. It would be a defining issue to get Democratic voters out in the midterm election and improve the possibility of a wave election, which becomes more likely with every drip from the Russia scandal.
There are obviously political risks when taking any bold move. Yet if Democrats turn to their counterparts, they will see how under Obama these kinds of tactics actually produced stronger Republican majorities and ultimately a Republican president.
With many Democrats feeling burned about the way Republicans refused to fill Justice Scalia’s position when Obama was in office, insisting on a moderate choice to fill what they consider a “stolen seat” would be a decisive political moment for the party.
It would deny a struggling Trump administration the kind of desperately needed political victory that could turn its situation around.