“Is the Democrats’ Decision to Filibuster Gorsuch Irrational?”

John McGinnis:

Now some academics, like Sandy Levinson, have argued that Democrats lose nothing by filibustering, because the Republicans would just get rid of the filibuster at the time of the next nomination. But that is not at all clear. First, the nominee might have more problems than Gorsuch. Second, some Republican Senators, like Susan Collins and Lisa Murkowski, would worry about imminent changes to the law on issues like abortion rights that the confirmation of a second conservative justice might elicit.  More dispassionate commentators, like Rick Hasen, understand this difference and recommend against filibustering Gorsuch.

Moreover, the threat of filibustering Supreme Court nominees is more helpful to Democrats than to Republican as a general matter. Because the current of our legal culture runs so strongly left, Democrats can nominate apparent moderates with some substantial confidence that they will drift left. Republicans on the other must find nominees with strongly formed commitments to resist the current and that opens up such nominees to the charge of extremism and thus to filibusters.

If the Democrats are not rational from the perspective of getting a congenial court, they may have other reasons for being sanguine about triggering the nuclear option.  First, the filibuster and subsequent nuclear option may help gin up their base in preparation for the 2018 election. But that is a long time away and citizens’ memories are short.

The more plausible reason is that Democrats are playing a longer game.  Just as eliminating the filibuster for lower court judges and executive branch nominations paved the way for eliminating the filibuster for Supreme Court nominations, so eliminating the filibuster for Supreme Court nominations paves the way for eliminating the filibuster for legislation. And the Democratic party (although not all individual Democrats) would be advantaged by its elimination. As the recent debacle over repealing Obamacare showed, it is harder to eliminate a major government program than to create it, because beneficiaries and those who serve beneficiaries become a powerful interest group for the status quo. Progressivism can better grow the entitlement state by a majoritarian system with fewer legislative checks and balances.



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