Last night President Trump announced his nomination of Neil Gorsuch to the Supreme Court. Even before the selection, the media outlets were abuzz over the potential of a Democrat filibuster in the Senate. Upset at the fact that President Obama’s nominee Merrick Garland was denied a hearing by the GOP controlled Senate, Democrat Senator Jeff Merkley stated prior to the nomination that he would filibuster any nominee. Once the Gorsuch nomination was made known, the focus turned to the question of whether other Democrat Senators who were not committed to filibuster regardless of the nominee, might be persuaded to filibuster Gorsuch based on his record. No doubt, there will much more on that question in the days to come.
Democrats might want to proceed with caution when considering whether to filibuster Judge Gorsuch. Having used the ‘nuclear option’ to eliminate most filibusters of nominees when they were in control of the Senate in 2013, they opened the door to a ‘tit for tat’ response by the GOP controlled Senate with respect to Supreme Court nominees. Some would argue that the country isn’t well served in the long term by eliminating the 60 vote supermajority required to defeat the filibuster when it comes to Supreme Court appointees. But the underlying reasoning which supports that perspective was just as strong when the Democrats eliminated the supermajority requirement with respect to lower court appointees. The McConnell led GOP Senate may be loath to extend the mistake made by Harry Reid and the Democrats, but the current Democrats should be leery at the prospect. Once triggered, all future Supreme Court nominees will be subjected to Senate approval upon the vote of a bare majority, effectively neutering the minority party from blocking any nominee, no matter how objectionable.
When it comes to Judge Gorsuch, there’s little for the Democrats to find objectionable. No less than President Obama’s solicitor general has penned an article entitled “Why Liberals Should Back Neil Gorsuch” wherein he extols the virtues of Judge Gorsuch writing that “if the Senate is to confirm anyone, Judge Gorsuch…should be at the top of the list” and adding that “he brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.” Though both parties should be concerned at the prospect of having no effective control over rogue nominations in the future, the Democrats concern in that regard should be more urgent because the GOP holds the Presidency now. When faced with the prospect of a second Trump nomination, they should be particularly wary of inducing the GOP to exercise the nuclear option thus depriving the Democrats of any leverage whatsoever should the opportunity for a second Trump nomination arise. So long as the Senate is still Republican controlled, President Trump would not have to consider the Democrat response to his next nomination. He’d need only be confident that his nominee would garner at least 51 Republican votes to confirm.
Finally, the Democrats should consider the ramifications if McConnell and the Republicans don’t exercise the nuclear option as well. McConnell may conclude that it isn’t necessary to stain the GOP with any responsibility for permanently eliminating the filibuster in the future. He may calculate that a Democrat filibuster which effectively kills the Gorsuch nomination is likely to backfire. President Trump is popular. He has made a very reasonable choice for the open seat on the Supreme Court. He will be in a position of political strength, not weakness, if the Democrats kill the nomination. President Trump could make life for Senate Democrats particularly difficult at that point. He could nominate any number of legitimate jurists the Democrats would like less than Judge Gorsuch. For example William Pryor is an excellent judge and was on Trump’s short list of potential appointees but it’s been widely acknowledged that the Democrats would find him less palatable that Judge Gorsuch. Not on his short list was, but eminently qualified, is Janice Rogers Brown, an African-American female jurist with a strong libertarian bent and a tendency toward outspoken criticism of the Supreme Court’s past abdications of its responsibility to safeguard the Constitution, particularly with respect to economic liberties. Do the Democrats really want to spend the next 12 to 18 months defeating the appointments of a popular president? Or will they smartly consider the damage such obstructionism might do to their chances in the 2018 mid-term elections?
President Trump’s nomination of Judge Gorsuch would seem to leave the Democrat minority in the Senate no good option other than to capitulate, after some lengthy posturing to placate its leftist grass roots, of course. A serious filibuster is likely to initiate one or the other of two scenarios, neither of which look to end well for the Democrat Party.