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The progressive case against filibustering Neil Gorsuch

Judge Neil Gorsuch (right) meets Chuck Schumer (D-NY), in February.

Senate Minority Leader Chuck Schumer appears to have secured support from 40 fellow Democrats for a filibuster of Judge Neil Gorsuch. That marks a short-term victory for Schumer in his bid to block Gorsuch’s nomination.

In the long term, though, we think it will prove to be a strategic blunder, making it easier for President Donald Trump to fill a future Supreme Court vacancy with a conservative justice who will swing the balance on issues such as abortion, LGBTQ rights, and affirmative action.

The next moves in the parliamentary chess match are predictable. Senate Majority Leader Mitch McConnell will invoke the “nuclear option” to change Senate rules so that Supreme Court nominees can be confirmed on an up-or-down vote. All McConnell needs now is for 50 of the chamber’s 52 Republicans to vote for the rule change, with Vice President Mike Pence serving as a potential tiebreaker, and the filibuster for Supreme Court nominees will go the way of the dodo.

It would have been wiser for Democrats to hold their fire here and save the filibuster for an instance in which it might have made a difference. With a nominee whose views were less extreme or whose credentials were less sterling, the filibuster would have been a powerful weapon in Senate Democrats’ arsenal. Here, it’s likely to be a dud.

To see why, it’s important to understand when the filibuster is a useful tool for the minority and when it is not. In a nutshell: The filibuster matters most when majority party support for a Supreme Court nominee is neither too hot nor too cold. It can be a source of strategic leverage for the minority when conditions are just right.

The filibuster works best against a nominee with middling support

On one end of the spectrum, the filibuster accomplishes no work when majority party support for a nominee is sufficiently strong — that is, when there are 50 or more senators who will support a nominee even if that means going nuclear. In that case, a filibuster will not prevent the nominee from being confirmed. The majority will change the rules to ensure that the nominee ascends to the bench. Most observers expect this to happen in Gorsuch’s case.

But the filibuster also accomplishes nothing when majority party support for a nominee falls below a certain level. If fewer than 50 senators will support a nominee on an up-or-down vote, then the minority doesn’t need the filibuster to block confirmation.

If, for example, President Trump nominated someone like former New Jersey judge and Fox News commentator Andrew Napolitano — best known for uncorking the false rumor that President Barack Obama spied on Donald Trump last fall — then Democrats might well be able to defeat the nomination even without the filibuster.

The filibuster matters most when a) there is a nominee who would win 50 or more senators on an up-or-down vote, but b) fewer than 50 senators would support the nuclear option in order to put the nominee on the Court.

When might these conditions be met? It’s not so difficult to imagine a scenario in which they are.

Quite a few Republican senators would prefer, all else equal, to see the filibuster stay rather than go. This is so for at least three reasons. First, some Republican senators have long enough memories (Orrin Hatch (UT), John McCain (AZ)) or long enough time horizons (for example, Ben Sasse (NE)) that they value the filibuster for when Republicans are in the minority. Second, some senators, for example, Lisa Murkowski (R-AK) and Susan Collins (R-ME), realize that the filibuster is all that keeps them relevant. If it takes only 50 votes to do business, then the 51st and 52nd most conservative senators — the Republican “moderates” — are powerless. Third, some senators, for example, Lindsey Graham (R-SC), appear to have an affinity for Senate tradition that will lead them to support the filibuster except in an extreme situation.

The question is whether these senators’ preference for the filibuster is strong enough to cause them to vote against the nuclear option — either in the case of Gorsuch or that of a future Republican nominee. The answer looks likely to be no in the context of Gorsuch: Support for this nominee among Senate Republicans is too hot. But it might well be otherwise in the context of an equally or even more conservative nominee named to fill a future vacancy that puts Roe v. Wade on the line.

It’s the next justice that will put cases like Roe in jeopardy

Remember that Susan Collins and Lisa Murkowski are pro-choice, which might make them somewhat less than gung-ho about a Trump nominee who would swing the balance of the Court on abortion. Dean Heller (R-NV) is less clear about his views regarding reproductive rights, but he is running for reelection in 2018 in a state that is turning blue.

If Justice Anthony Kennedy or one of the Democratic-appointed justices leaves the bench, would these three senators vote to confirm a staunchly conservative replacement? On an up-or-down vote, maybe. If it means going nuclear, then, well, maybe still. But it is at least somewhat less likely.

If they should find themselves in such a scenario, Democrats will wish they had not set in motion the events that led to the filibuster’s demise.

And there is another situation in which the filibuster matters. We do not know how the 2018 Senate elections will shake out. Most observers initially assumed that Republicans would pick up at least a few seats, given that 10 incumbent Democrats are running for reelection in states that went for Trump. But with the president’s approval ratings where they are, it’s not impossible to contemplate the Democrats gaining seats in 2018.

Imagine a 51–49 Senate with Murkowski as the critical vote, or a 50–50 Senate with Collins as the critical vote (and maybe Joe Manchin (D-WV) sometimes crossing over party lines). Let’s say that Kennedy or a Democratic appointee then leaves the Court, and President Trump names an avowedly anti-abortion appellate judge to fill the vacancy. Is it plausible that Collins, Murkowski, or Manchin a) might support the nominee on an up-or-down vote but b) might be unwilling to go along with McConnell’s use of the nuclear option?

We think so. But more to the point: While it is not too difficult to come up with scenarios in which keeping the filibuster helps the Democrats defeat a very conservative nominee in the future, it is much harder to see how filibustering Gorsuch accomplishes anything for the Democrats.

And so the strategic case, from a progressive perspective, against filibustering Gorsuch becomes easy: The probability that Roe v. Wade will survive the Trump years is unambiguously higher if Democrats don’t trigger the nuclear option here than if they do. So, too, for a number of other landmark decisions whose fate might hang in the balance if another vacancy arises. (Grutter v. Bollinger, which upheld affirmative action? Perhaps even Obergefell v. Hodges, which recognized same-sex marriage as a constitutional right?)

Why Sen. Schumer is considering a filibuster, despite the strong case against

Why, then, are Schumer and the Senate Democrats standing firm on a filibuster here, with full knowledge that their gambit is likely to trigger the nuclear option? There are three theories that might explain what’s going on in the mind of the minority leader and his co-partisans.

First, Schumer and other Senate Democrats might agree with our Goldilocks theory but not with our application of that theory here. They might think this is one of the “just right” cases where the nominee would win on an up-or-down vote but fewer than 50 Republicans would be willing to go along with the nuclear option.

We think this is unlikely: Moderate Republicans in the Senate have given no indication that they’ll go wobbly here. (If it turns out that McConnell doesn’t have the necessary 50 votes to go nuclear, then we will have to eat crow, and the “master of the Senate” moniker should be bestowed on Schumer rather than LBJ.)

Second, Schumer and Senate Democrats might be hoping that a fight over Judge Gorsuch here, even if it triggers the nuclear option, will galvanize Democratic voters going into the 2018 midterms. Here too, though, we are skeptical. Exit polls from 2016 indicated that the future of the Supreme Court was an issue more likely to motivate Republican voters than Democrats. And in order to hold critical seats in states like Indiana, Montana, North Dakota, and West Virginia in 2018, Democrats will need to win over moderate voters. It will be harder to win over those voters if Democrats are perceived as obstructionists.

Third, Schumer and other Senate Democrats might be standing firm here because they are worried about backlash from their own base if they don’t. Certainly, the senators who are contemplating a run for the party’s presidential nomination in 2020 would be well-advised to support the filibuster here. Personal ambition and partisan fury are a combustible combination.

But while support for a filibuster might be individually rational for particular senators, we think the likely result is a loss for the progressive movement as a whole. Thoughtful liberals say this is a stolen seat that belongs to Merrick Garland, not Neil Gorsuch, and we do not disagree. But filibustering here won’t change that. What it might change is whether Trump can use a future vacancy to fundamentally reshape American constitutional law.

Daniel Hemel is an assistant professor at the University of Chicago Law School. Find him on Twitter @DanielJHemel. David Herzig is a professor of law and the Michael and Dianne Swygert research fellow at Valparaiso University. Find him on Twitter @professortax.

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