Will Senate Democrats Filibuster Judge Neil Gorsuch for the Supreme Court? Should They?

President Trump has nominated Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to replace Justice Antonin Scalia, who died back in February. Judge Gorsuch is an extremely able and well respected, but deeply conservative, judge. There is no question that on issues of judicial competence and legal writing, he excels (much like the reputation of John Roberts before he was nominated). He is no Scalia clone—there are important issues on which he will differ, perhaps most interestingly in areas of administrative law (and the question of Chevron deference). On some issues he would be more conservative from Justice Scalia, on some less. But on the key questions that most of the public cares about, he should be a reliable conservative vote, on issues from abortion to affirmative action to guns and campaign finance and voting rights. For liberals, it is a return to a 5-4 Court on most of those issues, with Justice Kennedy back in the swing seat role keeping the Court from going even more conservative. Things will be bad for progressive constitutionalism under a Justice Gorsuch; things will be much, much worse if Justices Breyer, Ginsburg or Kennedy retire or die while President Trump can name a replacement.

There will be hearings and questions at the Senate Judiciary Committee, and I have every reason to believe that Judge Gorsuch will do well. There will almost certainly be no reasons related to competence or scandal to derail the nomination. But that doesn’t mean Democrats should allow him through. Perhaps they should even filibuster his nomination, leaving it to Senator McConnell and the Republicans to change the rules (“going nuclear”) so that it will only take 51 votes to confirm a Justice for the Supreme Court. That may seem radical, but a few years ago, Sen. Harry Reid eliminated the filibuster for all nominations aside from Supreme Court nominations. There is little doubt that Sen. McConnell will do this if he has to in order to push Judge Gorsuch through.

Democrats are steamed that Sen. McConnell did not even give a hearing to (much less allow a vote on) President Obama’s nominee for Justice Scalia’s seat, Judge Merrick Garland. As with Judge Gorsuch, Judge Garland was extremely qualified. He was also a much more moderate nominee than other nominees President Obama could have chosen. Nonetheless, Sen. McConnell was a complete obstructionist.

So there are three reasons why Democrats might not only oppose Judge Gorsuch but even filibuster him. First, it is pretty clear that both Democrats and Republicans increasingly recognize that on the key legal and political issues that matter to most Americans, Democratic-appointed justices and Republican-appointed Justices have different views and vote differently. This is not because the judges are party hacks but because they are chosen by partisans for their sincerely-held jurisprudential views which produce certain political results. So one reason for Democrats to filibuster is to send the message that Gorsuch’s ideology is too far to the right for Democrats to tolerate. Sen. Schumer is already signalling a filibuster by saying 60 votes should be required.

The second reason for Democrats to potentially filibuster Judge Gorsuch is as payback for the obstructionism of Sen. McConnell on Judge Garland and other issues. It is a way of signalling disgust at Judge Garland’s treatment and making Sen. McConnell have to change the rules of the Senate at a time a whole bunch of people are paying attention, allowing Democrats to claim that McConnell is changing the rules midstream for political reasons. If this happens, expect both sides to scream that the other side is hypocritical and to claim the high road.

The third reason for Democrats to filibuster is to please the Democratic base. The new slogan of the left in the Trump era is “resist” and Democrats who just roll over for Sen. McConnell appear to be capitulating, looking and acting weak. This is a pivotal moment for Democrats, and if they don’t put up a fight here, they are going to have to fight elsewhere or they will have a tea party rebellion on the left from Democrats.

CNN was reporting before Judge Gorsuch’s name became public that Democrats were considering no filibuster of the first nominee, saving it for when Justices Breyer, Ginsburg or Kennedy leave the Court and control of the Court could gain be up for grabs.

So will Senate Democrats filibuster Judge Gorsuch?  My prediction is that they will not.  Democrats seem to have a harder time with obstructionism than Republicans, and when you have prominent Democratic lawyers like Neal Katyal voicing support for Gorsuch, enough Democrats won’t have the stomach to filibuster, especially knowing it will end with Gorsuch on the Court anyway. Further, some Democrats may be hoping that by not filibustering they can keep channels open with those Senate Republicans who are willing to deal on other issues, whether or not this is actually true. If Senate Democrats are going to grow a spine, it probably won’t be this fight.

Is that the right strategy for Democrats?  Should they filibuster Judge Gorsuch and make their stand now? There is a strong argument that Democrats should, which Jonathan Chait makes: what good is a filibuster that Democrats are afraid to use?  Further, why keep the powder dry when next time Democrats may have even less power (if they lose seats facing a potential tough election draw in 2018) next time?  Republicans may not pay a big price by nuking the filibuster, especially in this Trump environment, where everything is getting blown up. Indeed such a move would be wildly popular among hard-core Republican circles. That would be even truer when the Ginsburg seat, for example, is on the line.

There are two normative arguments against filibustering. The first is that it further escalates the judicial wars, and helps to make the judiciary into a more political institution.  I think this ship has sailed. The Court is now not just an ideological institution, but one in which ideology lines up with partisan affiliation. The Court will be seen as political more than ever, no matter what Democrats do. So why not take a stand now?

The second argument, and one which is much harder for me to assess, is about what Democrats would lose with moderate Republican Senators by filibustering.  If they will need those Senators, and can hope to get their cooperation, then holding fire makes sense. I’m skeptical, but who knows what is coming in the Trump era, and when Democrats will desperately need some Republican votes for something?

A tough choice in tough times.

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