The Neil Gorsuch nomination puts Senate Democrats in a bind. If they try to oppose his appointment by filibuster, Republicans can respond by eliminating the 60-vote threshold required for Supreme Court candidates—and then whacking the 11 Democrats who represent red states (10 of whom are up re-election next year) for corrosive partisanship. If they don’t filibuster, many in the progressive "Resistance” will accuse them of being patsies, sapping grassroots energy for the 2018 midterms or even igniting Tea Party-style primary challenges.
But it’s actually not that complicated. Stopping Gorsuch is a massive longshot. Even so, Democrats have every reason to fight the nomination to the hilt, filibuster be damned. And there’s even a way to do it that could bolster the standing of vulnerable red state Democrats who fear being tarred as far left partisans.
The argument against filibuster rests on the fear that Republicans will employ the "nuclear option” in response, changing Senate rules by a simple majority—over the objection of the Senate parliamentarian—to strip the minority party of its ability to filibuster Supreme Court nominees. Democrats already went nuclear in 2013 to terminate Republican filibusters of President Barack Obama’s lower court nominees and executive branch appointments, and President Donald Trump is urging Senate Majority Leader Mitch McConnell to "go nuclear” this time if necessary, so it won’t feel all that explosive for Republicans to respond in kind.
And if Republicans do respond in kind, certain nervous Democratic senators fear they will be deprived of the filibuster for an even bigger Supreme Court battle: if Trump gets the opportunity to replace a liberal justice like Ruth Bader Ginsberg or Stephen Breyer, or the lone swing vote on the court Justice Anthony Kennedy.
Such logic collapses on itself. If the operating assumption is that waging a filibuster means losing the filibuster, then the filibuster is already lost. Just look at the way two scenarios will play out. One: Filibuster Gorsuch, lose the filibuster, Gorsuch is confirmed and the next nominee is confirmed. Two: Confirm Gorsuch, filibuster the next conservative nominee, lose the filibuster and the next nominee is confirmed. The events take place in a different order, but the results are the same.
Might having the filibuster in the Democrats’ back pocket compel Trump to appoint a relatively moderate judge when filling a liberal or swing seat? The last Republican president, George W. Bush, tried that when he nominated his White House Counsel Harriet Miers to replace the center-right Justice Sandra Day O’Connor. Conservatives—who are marinated in the belief that establishment Republicans live to betray them on court picks—revolted, and Miers withdrew her nomination. Trump, in turn, has hugged the conservative legal community throughout his short political career, successfully keeping skeptical Republicans in his fold. There’s no reason to believe he’d cross them now.
Might a premature confrontation yield an even worse outcome than just losing the filibuster for Supreme Court confirmations by losing the filibuster for legislation as well? Nothing can be discounted, but similar logic applies. If Republicans are prepared to scuttle the filibuster after any attempt by Democrats to use it, it’s already lost.
Two more optimistic outcomes exist if the Democrats choose to filibuster. One is that Republicans go nuclear, Gorsuch is confirmed, but Trump doesn’t get a second pick, and Democrats—having taken back the Senate—are the ones who reap the rewards of the filibuster’s demise. The other is that Senate Majority Leader Mitch McConnell is unable to detonate the nuke—and Democrats successfully oppose Gorsuch and other future nominees they choose.
After all, it only takes three Republicans to defect to deny McConnell the needed majority for a rule change. Sen. Susan Collins from Maine has already said, "I am not a proponent of changing the rules of the Senate.” She was a member of the "Gang of 14” that previously defused a threat to the filibuster in 2005. Two other institutionalist Republicans remain from that gang: Sens. John McCain and Lindsey Graham. Two other blue state Republicans reluctant to anger their constituents, Sens. Dean Heller and Cory Gardner, both may not be reliable votes. And there are others who have displayed moderate flashes, like Arizona’s Senator Jeff Flake and Alaska’s Senator Lisa Murkowski.
Sure, the odds that three Republicans will aid Democrats in thwarting Gorsuch may be low. But those odds are better than rolling over for Gorsuch, which has a 100 percent chance of failure.
Simply put: The filibuster may be a precious parliamentary tool that protects our democracy from a tyranny of the majority. And we can argue over who is a fault for diminishing the filibuster in 2013—Republicans for abusing the rules or Democrats for changing the rules. But we can’t turn back the clock. We have to deal with the present. And if the present majority won’t let the minority use the filibuster, there’s no filibuster to save.
But what about the political risk to the red state Democrats, who fear a filibuster might alienate some of their important Republican and independent supporters at home? The squeezed centrists have "third way” option in the Gorsuch fight. Instead of bowing for Trump, or simply falling in line behind Senate Minority Leader Chuck Schumer, they could take a stand against the political polarization of the Supreme Court.
The red state Democrats could declare they won’t allow a partisan nomination to move forward. Instead, they will only stand down once a consensus nomination is made, in collaboration with senators of both parties.
By doing so, they would send a message that the partisanship that sunk the Merrick Garland nomination should not be forgotten, without having that message be easily dismissed as more of the usual partisan gamesmanship. They would also cut through the tension that has engulfed the early days of the Trump presidency, making a plea for national healing in the wake of the divisive election and protecting the highest court from becoming just another political football.
Perhaps the easier way out for most of the red state Dems would be to acquiesce on Gorsuch; Schumer could let seven of them stray and still mount a filibuster. But that would make the filibuster look more ideological and partisan, and the red staters would risk a loss of liberal base enthusiasm at home. The wily Schumer would probably prefer having his moderate faction lead the way and take the left-wing edge off of the filibuster fight.
In the best-case scenario, a few Republicans join in the call for consensus, and a new "Gang” is formed that holds the fulcrum of power. Of course, this is not the likeliest result. Republicans, even the moderates, were hungry enough for this seat to risk political fallout in burying the Garland nomination. No matter what Democrats do, Gorsuch is almost sure to get confirmed.
But how Democrats lose is important. They need to keep their base energized. They need to protect vulnerable senators. They need maintain party unity. And they need to deliver a consistent and compelling message to the broader electorate about their governing principles that goes beyond knee-jerk resistance to all things Trump. A carefully waged fight against Gorsuch will accomplish all those goals.