It’s official: Senate Democrats are going to try to filibuster Neil Gorsuch’s nomination to the Supreme Court.
Senate Minority Leader Chuck Schumer stated in a Senate floor speech that Gorsuch “almost instinctively favors the powerful over the weak,” and is “not a neutral legal mind but someone with a deep-seated conservative ideology.”
Senator Schumer Explains Why He will Vote No on Judge Gorsuch'...
The American people deserve a Supreme Court Justice who sees average litigants as more than mere incidental consequences of precedent when that precedent produces an absurd result; whose view of the law is not so cold and so arid so as to wring out every last drop of humanity and common sense. It requires only the bare minimum of judicial decency to rule the right way in the cases I mentioned in my speech today, and yet Judge Gorsuch did not. After careful deliberation, I have concluded that I cannot support Judge Neil Gorsuch’s nomination to the Supreme Court. His nomination will face a cloture vote, and as I’ve said, he will have to earn sixty votes for confirmation. My vote will be “No.” - Watch my full speech this morning to hear why:Posted by Senator Chuck Schumer on Thursday, March 23, 2017
Judge Gorsuch's nomination will face a cloture vote & as I’ve said, he will have to earn sixty votes for confirmation. My vote will be “No.”— Chuck Schumer (@SenSchumer) March 23, 2017
Other Democrats have signaled that they'll join their leader. Bob Casey, a senator from Pennsylvania facing reelection next year after his state went for Trump, stated that he has "serious concerns about Judge Gorsuch's rigid and restrictive judicial philosophy."
There’s no guarantee that this filibuster will succeed. When John Kerry, who had just lost the presidential election, and Senate Minority Leader Harry Reid backed a filibuster of Samuel Alito in 2005, only 23 members of their caucus joined them, while 19 Democrats, including current Sens. Maria Cantwell, Tom Carper, and Bill Nelson, voted to break the filibuster. Those three senators, plus four senators from deep red states (Joe Manchin, Heidi Heitkamp, Joe Donnelly, and Claire McCaskill), plus one more (maybe Michael Bennet from Gorsuch’s home state of Colorado) would be enough to break a filibuster.
And there’s still a chance that Schumer changes his mind. On Wednesday night, Politico's Burgess Everett reported that Democrats were weighing a deal that would see Gorsuch confirmed in exchange for "a commitment from Republicans not to kill the filibuster for a subsequent vacancy during President Donald Trump’s term."
But if Schumer’s effort goes forward, and succeeds, it appears likely that the result would be the elimination of the filibuster on Supreme Court nominees — the “nuclear option.” Republican Sens. Mike Lee and Lamar Alexander have been calling for that change since Republicans recaptured the Senate in early 2015, and Majority Leader Mitch McConnell himself has signaled that he’s willing to go nuclear, telling reporters, “Gorsuch will be confirmed; I just can't tell you exactly how that will happen, yet.”
Schumer’s decision should be understood, then, as a strategic judgment that it’s worth risking the nuclear option for a small chance of defeating Gorsuch. It’s obvious that Democrats don’t want to confirm Gorsuch, who wrote a book arguing that judges should embrace an absolute right-to-life principle in assisted suicide cases, has backed religious challenges to the Affordable Care Act, and sided with corporations and against workers in a variety of cases. But there are some strategic arguments for why they might not have wanted to filibuster this time around anyway. Schumer’s decision suggests he doesn’t find those arguments compelling, and thinks the straightforward strategy of “resist a nominee you think is bad” is more sound.
The strategic logic for accepting Gorsuch — and why Schumer rejected it
If the nuclear option is invoked, that doesn’t just confirm Gorsuch. It means that if a liberal or swing justice dies or retires while Republicans have a Senate majority, giving Trump the power to truly reshape the Court, there will be nothing they can do to stop him. The 5-4 majority that has upheld reproductive rights, struck down same-sex marriage bans, and generally prevented total conservative domination of the nation’s highest court would be replaced by a permanent conservative majority.
Without the filibuster, Republicans could confirm a replacement with a simple majority. They could put in someone like 11th Circuit Judge Bill Pryor, who has called Roe v. Wade “the worst abomination in the history of constitutional law,” and Democrats would not be able to block him.
So there’s an argument to be made that Democrats should save their ammunition for the (hypothetical) next fight: filibustering anyone whom Trump picks to replace Anthony Kennedy, Ruth Bader Ginsburg, or Stephen Breyer, the three oldest justices. Because of the higher ideological stakes for the Court, this strategy bets that less conservative Senate Republicans such as Lisa Murkowski, Rob Portman, Cory Gardner, or Susan Collins might be less willing to go nuclear than they might be on Gorsuch’s behalf. The nominee could then be successfully blocked until Trump pulls the nominee and picks a more moderate choice.
Schumer’s decision suggests he disagrees with this logic — and there are sound reasons for him to do so. For one thing, the argument only makes sense if you think less conservative Republicans would vote for a conservative replacement to Ginsburg or Kennedy, but not go nuclear on their behalf. If they’d both refuse to go nuclear and vote against the nominee, then it doesn’t matter if the threshold is 51 or 60 — the nominee would fall short either way. So surrendering ahead of time only makes sense if you think there are a decent number of Republicans who will stake out the peculiar compromise position of being pro-nominee but anti–nuclear option.
Schumer might also think Republicans lack the votes to go nuclear over Gorsuch. If the nuclear option isn’t possible in this case, then Democrats really can prevent Gorsuch from taking his seat indefinitely.