For the duration of his confirmation hearings, Neil Gorsuch will be cross-examined by skeptical or downright contemptuous Democratic senators. They will seek to paint – or expose, depending on your point of view – him as a right wing ideologue. Republicans will praise Gorsuch, touting his judicial sobriety and personal decency.
There will be sound bites and fury, but it won’t signify much. The real drama here is going to play out behind the scenes.
While the Republicans enjoy a majority, it is the near-powerless Democrats who have some serious decisions to make. Yes, they can threaten a filibuster. Republicans, with 52 votes, do not have the 60 required to overcome it. But they have more than enough, if Majority Leader Mitch McConnell decided on it, to change the rules.
By using the so-called “nuclear option,” the GOP can eliminate the filibuster and allow Gorsuch to be confirmed with 51 votes. And while there is some anxiety in the ranks about what would be a permanent overhaul to Senate procedure, the nominee’s popularity with Republicans of almost all stripes and factions will make it that much more tempting. President Donald Trump, for one, has publicly encouraged McConnell to “go for it.”
So what is a Democrat to do?
Progressive groups and other outside interest organizations are clear on the question. Resist. That’s where the action is on the left right now and they are demanding Democratic senators do everything in their power to oppose Gorsuch.
“Our message to Senate Democrats is clear: everything from Roe v. Wade to LGBTQ rights to workers’ rights are on the line,” Ilyse Hogue, president of NARAL Pro-Choice America, said in a statement Monday morning. “A simple ‘no’ vote is not enough. Our members are counting on Democrats to filibuster this nomination.”
Moderate Democrats and party leadership are less certain. They worry that attempting to block Gorsuch could turn off independents. As the theory goes, those voters would, in their pique at this apparent obstruction, punish vulnerable Democrats at the ballot box in 2018.
Schumer has said Democrats will require 60 votes (i.e.: a filibuster-proof majority) for Gorsuch. If eight Democrats side with Republicans in favor of Gorsuch, the entire exercise it moot anyway. Gorsuch would have the votes.
Ten seats held by Democrats in states that went to Trump in 2016 are up for grabs in 2018.
A decision not to filibuster would likely be cast as a kind of strategic retreat. It assumes, or provides insurance for the possibility, that Trump will have another seat to fill in the coming years. By this logic, McConnell would – in what would be an even more tense fight, with the ideological balance of the court at stake – have a more difficult time getting his caucus to go nuclear.
McConnell himself has expressed concern about blowing up the current rules — and for good reason: When the filibuster goes, it stays gone. The Republican majority and White House, on the other hand, could be wiped out in a few years. And with it, the only thing standing between the Democrats and their own justice of choice.
Democrats, it should be noted here, were faced with a similar, if lower stakes decision in 2013 – and plowed ahead. With Republicans holding up President Barack Obama’s nominees, they used the nuclear option to lower the 60 vote threshold to break filibusters. But that only applied to executive branch appointments, like cabinet nominees, and judicial nominations short of the Supreme Court.
Back then, McConnell called it “a sad day in the history of the Senate.” Minority Leader Chuck Schumer told CNN in January he regrets the move.
Given that, and as a matter of logic crossed with recent history, it would make little sense for Democrats to forgo the filibuster. Republicans held up Obama’s nominee, Judge Merrick Garland, for almost a year after he was chosen to replace the late Antonin Scalia. Still, they won the White House and – against the odds – kept their Senate majority.
More importantly, there is nothing material to suggest Republicans would be any less inclined to use the nuclear option to pave the way for a second Trump nominee. With more at stake – specifically, a high court majority for a generation – the pull might even be greater.
For Democrats, the upside in going to the wall to block Gorsuch is more concrete. In the short term, it could galvanize a fractured and dispirited base. Taking a longer and more speculative view, effectively pushing Republicans to the change rules now would also provide a future Democratic majority and president a smoother path to confirming their own pick.
The filibuster would be gone, and it would the Republicans’ own doing.