Senate Minority Leader Chuck Schumer stated that he will filibuster Neil Gorsuch, and I guess the next step is to try to figure out what that means. If he can count the votes in his own caucus, it means that Gorsuch cannot be confirmed without the Republicans taking extraordinary measures:
“If this nominee cannot earn 60 votes — a bar met by each of President Obama’s nominees, and George Bush’s last two nominees — the answer isn’t to change the rules. It’s to change the nominee,” [Schumer] said.
Last Wednesday, I laid out a strategy that the Democrats should pursue that corresponds fairly well, although not perfectly, with what I’m seeing from Schumer now. On the positive side, he’s pointing out that it’s the president’s responsibility to nominate someone who has broad bipartisan support, and if Gorsuch isn’t that nominee then Trump should go back to the drawing board rather than ask the Senate to change its rules so that Supreme Court judges can be confirmed with a simple majority.
On the negative side, the emphasis from Schumer is a little too much on Gorsuch as a person and not enough on the principle that the Democrats should have been consulted about who would be an acceptable nominee who could win over a substantial number of their caucus.
One of the challenges the Democrats have to figure out is how to address this:
“If Judge Gorsuch can’t achieve 60 votes in the Senate, could any judge appointed by a Republican president be approved with 60 or more votes in the Senate?” Senate Majority Leader Mitch McConnell (R-Ky.) said this week.
The way to answer that is to say emphatically that the answer is ‘yes,’ but that the Democrats will be the ones to tell you which judges can get 60 votes in the Senate, and the Republicans better get their nominee all but pre-approved before they come back with another candidate. Schumer should be saying, over and over again, that he is willing to sit down with Trump and discuss acceptable names for the Court, but if he and the the Democrats on the Judiciary Committee are not consulted in that manner, there will be no votes for any nominee other than Merrick Garland.
Schumer can’t prevent the Republicans from changing the rules. But he can make it politically painful for them to do so. If he bases his opposition to Gorsuch primarily on Gorsuch’s record or performance in the hearings, he’ll be making it easy for McConnell to make the argument that no Republican nominee would be acceptable. But if he insists that many Republicans would be acceptable, but the Dems must be consulted, then blowing up the rules just to avoid consultation will look extreme.
That’s not an outcome Schumer can really control anyway except by capitulation. There are many Republican senators who absolutely do not want to eliminate the filibuster for Supreme Court nominees. That doesn’t mean they can’t be convinced to do it, but there’s at least some hope that it will prove more difficult than many anticipate.
Schumer seems to have rallied his caucus. I base that assessment on the fact that I don’t think he’d be staking out this ground if his troops weren’t lined up. He can afford to lose seven Democrats on a filibuster vote, but not eight. He can set vulnerable Dems like Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia free to vote to end the filibuster of Gorsuch without any worry. Pro-life Democrat Bob Casey Jr. of Pennsylvania is already on the record saying he will filibuster Gorsuch, so there aren’t any obvious cracks in the resolve right now.
But, as I said, beating Gorsuch isn’t the point, just as beating Robert Bork wasn’t the point. The point is to get a more moderate Justice, not to just keep filibustering every nominee that Trump sends down Pennsylvania Avenue. They need to be very clear that they’ll confirm someone, eventually, provided that they have a big say in who that someone is.