I have no doubt that a Justice Gorsuch will be awful for progressives on the issues that they care the most about: abortion, affirmative action, campaign finance, voting rights, environmental protection, gun rights, and everything else. I’m even more convinced watching the hearings that Judge Gorsuch fancies himself an originalist and textualist in the mold of Justice Scalia. This means he is likely to be more conservative than Chief Justice Roberts, and could be as conservative if not more conservative than Justices Alito and Thomas. (I wrote about where he is likely to stand on campaign finance and voting rights in this CNN piece and this blog post. I also think we need a bit more clarification on his views. based on misstatements at the hearing.)
So should Democrats try to filibuster him? Right now it takes 60 votes to bring Gorsuch’s nomination to the floor. If Democrats hang together, they could filibuster him. That would likely cause Senator McConnell to trigger the nuclear option for Supreme Court appointees (just like Senator Reid, for the Democrats, went nuclear a few years ago for all appointees aside from the Supreme Court). He may have some reluctant Republicans to do that, but my bet is he’d get it through.
So why shouldn’t Democrats do it now, to get attention and to protest the shameful failure of Republicans to consider Judge Merrick Garland for the Supreme Court when nominated by President Obama? I’ve struggled with it but now think it better not to filibuster.
Democrats hold a pair of twos. They don’t have much they can do. Triggering a fight over the filibuster will gain attention, but Democrats can only do it once. The Gorsuch nomination restores the balance of power on the Court to the position it was in before Justice Scalia’s death.
Imagine if in a year or so Justices Breyer, Ginsburg, or Kennedy leave the Court. Then things get MUCH worse from the point of view of progressives. Then Roberts becomes the swing voter and there goes affirmative action, abortion rights, etc. If you think things with the Supreme Court are bad for progressive now they can get much, much worse.
Better to save the firepower for that fight. It is possible that Senators like Susan Collins would be squeamish about such a nominee, and they might not vote to go nuclear. At that point, people can take to the streets and exert public pressure. At that point, the left will perhaps realize what they lost when they lost the 2016 election and how bad things will be.
Another thing. Lots of Trump state Democratic Senators are coming up for reelection in 2018. Democrats need to hold those seats. Democrats and their allies have not done a good enough job painting Judge Gorsuch as a danger to the rights and issues people care about in those states. They would be put to tough votes if they are put in the position to filibuster. They may not do it, and if they do it could make the more vulnerable in 2018.
So while I’ve vacillated, I now don’t think Democrats should trigger the filibuster now.
The future is uncertain. It won’t buy much now. It might buy more in the future. Maybe in the future Democrats will have better than a pair of twos.