Supreme Court Justice nominee Neil Gorsuch on Capitol Hill in Washington, Tuesday, March 21, 2017, for his confirmation hearing before the Senate Judiciary Committee. (AP Photo/Pablo Martinez Monsivais)

Please Democrats, Please Filibuster Gorsuch

When news broke that Joe Donnelly of Indiana became the third Democrat Senator to support Neil Gorsuch for the Supreme Court, part of me died a little inside. Not because it surprised me that Donnelly decided to back Gorsuch given that he is going to have an uphill climb to get re-elected in a state that went 57-40 for Trump in 2016.

What killed me was that I desperately want to see the Democrats sustain a filibuster against Gorsuch, not because I want his nomination to fail, but precisely because I am confident it won’t. Senate Majority Leader Mitch McConnell has given every indication that Trump’s nominee is going to get an up-or-down vote in the Senate and be confirmed.

He says this while knowing that his nemesis across the aisle, Chuck Schumer, is orchestrating a filibuster. So that indicates one of only two possible options:

  1. McConnell knows that he has enough Democrats who will defect and bring about the necessary cloture votes, or…
  2. McConnell doesn’t care if enough Democrats defect because he will happily trigger the Democrat-created “nuclear option” to prevent filibusters on Supreme Court nominees.

As much as I would like to see Schumer’s leadership weakened by mass defections in his own party, I am truly hoping the Democrats force McConnell to use the nuclear option. The political fallout from such would benefit conservatism immensely. Why?

First, there is likely to be little-to-no public outcry about the maneuver. Gorsuch is heavily favored by the American people by nearly 20 points. And remember, the nuclear option was invented by Harry Reid and the Democrats to force through federal judicial appointments being filibustered by the Republicans a few years ago. It’s hard to sustain any partisan critique of the Republicans going nuclear when you did it first.

Secondly, and far more importantly, the next Supreme Court opening is likely to be one that will actually tip the balance of the Court. While supposedly conservative Gorsuch is potentially replacing conservative jurist Antonin Scalia, the next nominee will theoretically be replacing a liberal or moderate. When Trump’s first term ends, liberal Ruth Bader Ginsburg will be 88 years old, moderate Anthony Kennedy will be 85, and liberal Steven Breyer will be 83. Not ancient by any stretch, but odds are that at least one of those seats will become vacant in the intervening years.

If Democrats allow a vote on Gorsuch without filibuster, it will strengthen their hand in forcing a showdown over the next nominee. Not only will that battle likely be much closer to an election, but the stakes will be much higher given the generational change that could come to the Court. Republicans would find it much more difficult to “go nuclear” in such an environment, increasing the odds that a justice far more pleasing to the left would be appointed (think another Anthony Kennedy or David Souter).

Time Magazine picked up on this recently, quoting an anonymous conservative strategist:

“That’s a dumb strategic move for Democrats,” one conservative strategist from an outside group said.


“If McConnell gets to nuke it first round, ultimately that’s what Republicans want,” the strategist said. “If they nuke Gorsuch, it’s a no brainer that [next time] they’ll put up somebody really, really, really conservative. If they’re not forced to nuke it, I think they will think more strategically about who they select.”

Everyone knows that when given their next opportunity, Democrats will gladly go nuclear to force through their own nominee. There’s no reason other than their own reticence then, that Republicans shouldn’t do the same now. But that reticence, that lack of political gamesmanship, is what always hampers the right.

That’s why I’m holding my breath hoping that this time, through his insatiable partisanship in forcing an incredibly ignorant filibuster of Neil Gorsuch, Chuck Schumer may inadvertently prevent the Republicans from being their own worst enemy. Here’s to hoping.

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Peter Heck

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