I don’t fancy myself a brilliant legislative tactician, and game theory was never my strongest subject. So take all this with that in mind. But here are some thoughts and suggestions for how Democrats in the Senate, and more broadly, might approach the nomination of Neil Gorsuch to the Supreme Court.
- Claims by Sen. Mitch McConnell that the American people will not tolerate Democratic obstruction on a Supreme Court nomination are as laughably ironic as they are false. Voters may claim in surveys that they care about procedural norms and fairness, but there’s scant evidence that they actually vote that way, and the 2016 election provides a perfect example. Republicans’ refusal to even consider President Obama’s nomination of Merrick Garland to the Court last March was a massive norm violation; voters nonetheless kept Republicans in charge of the Senate.
- Unlike many of President Trump’s Cabinet appointees, Gorsuch has experience and credentials appropriate for the job. He seems very much like the sort of justice a President Rubio, Bush, or Cruz might have appointed. But that doesn’t make him impervious to criticism. His stances are mainstream conservative, but Republicans have spent years attacking mainstream liberal ideas such as reproductive rights, guaranteed health care, and infrastructure spending as socialist and un-American. Democrats could certainly subject Gorsuch’s views to similar treatment. (I’m borrowing from my colleague Julia Azari here.)
- Republicans are generally describing the open Court position as Antonin Scalia’s seat. Seen in this light, installing Gorsuch is not much of a departure. If it’s seen as Garland’s rightful seat, then installing Gorsuch appears quite different. This is a case Democrats could be making more forcefully. Democrats might also point out that McConnell specifically said he wanted the American people to weigh in on this through their presidential vote, and the Republican position lost by nearly three million votes.
- The Senate, perhaps more so even than the House, is governed by procedural norms. The idea that a president’s pick for the Supreme Court deserves a hearing, regardless of party, is one of those norms. Republicans violated that norm last year. If a major norm violation goes unpunished, the norm no longer exists. This will mean that future Court vacancies will go unfilled when different parties control the White House and the Senate. The Court will rarely contain nine members, and its capacity will be reduced. McConnell and his fellow Senate Republicans signaled last year that they find that scenario preferable to their party losing a seat on the Court.
- Those urging Democrats to accept that they have lost this seat and simply conduct a normal judicial appointment process are asking Democrats to be the grown-ups. They’re telling Democrats to take a hit in the name of preserving an important democratic institution. But if a major norm violation goes unpunished, that institution has already been damaged. If Republicans pay no price for this transgression, it will signal that this can be done again, and it will.
- Should Democrats filibuster this nomination, the Republican majority might well decide to deploy the “nuclear option” and abolish the filibuster on Supreme Court nominations altogether. Trump has already publicly urged McConnell to do just this. But if Republicans are already credibly threatening to abolish the filibuster, then it really no longer exists. What’s the point for Democrats to give up the filibuster when it matters but wait for a time when McConnell lets them do it? What concessions do Democrats win for not deploying a weapon in their arsenal?
- Democrats will likely lose on this nomination in the end. Even if they somehow sink Gorsuch, they don’t necessarily get someone more to their liking, and the Senate can probably seat someone eventually without their input. But this doesn’t have to be the only place a norm violation is punished. A large Senate minority party can make the legislative process painfully slow and costly for the majority. Yes, Trump and McConnell will fume that the Democrats are being obstructionist. Look at the Garland nomination and the 2013 budget showdown and explain to me how much voters will care.
- Over the past few decades, Republicans in Congress have been far more likely to engage in institutional norm violations than their Democratic colleagues have. These include budget shutdowns, credit default threats, and presidential impeachment. Voters appear to be uninterested in or incapable of punishing those violations. Only members of Congress, who plan to continue to work there and hope to achieve their legislative goals, have any real incentive to keep the institution functioning. A tit-for-tat policy is ugly in the short run but creates incentives for future cooperation. If one party simply accommodates the others’ repeated violations, that is a recipe for a compromised institution.
Now, I’m speaking of Senate Democrats above as a cohesive party, and that’s not necessarily accurate. They could mostly agree on an approach, but if they have enough defections, with moderate Democrats going on TV to complain about how the liberals have hijacked the party, that would undermine any obstructionist strategy they have in mind.
But generally, Democrats don’t have a lot to lose right now. Yes, they want to pick up seats in 2018 in what will be a difficult field, but those results will largely be determined by other factors, especially the economy and Trump’s popularity. And again, we’ve seen little if any evidence that voters punish obstruction. What can Democrats hope to gain? In the long run, a functional Congress.