Democrats Have Nothing to Lose by Filibustering Gorsuch

After much intense debate, Senate Minority Leader Chuck Schumer finally declared that Democrats will indeed filibuster Supreme Court nominee Gorsuch. The decision still rankles many, however, who feel that Democrats should have held their fire over this nominee in order to prevent a more unqualified, even more extreme justice later on. The argument against filibustering Gorsuch is misguided–but first let’s play devil’s advocate.

The anti-filibuster side marshals the following arguments: 1) Gorsuch, while an ideological conservative, is at least qualified to serve on the bench; 2) the seat he would fill is a replacement for the late conservative Antonin Scalia, and thus does not shift the balance of the court in the way that a replacement for another justice might; 3) filibustering Gorsuch would mean that Republicans will kill the filibuster on Supreme Court nominees, blocking any future attempts by Democrats to hold the line now and in the future. With those arguments in mind, some Senate Democrats pursued deals with the GOP to allow Gorsuch through for now, but to preserve the option of filibustering later.

None of these arguments are persuasive.

First, there is no reason to believe that Senate Republicans would honor any such deal to allow Gorsuch to sail through but preserve the filibuster. Pressure on GOP Senators from the right-wing media and their base would be overwhelming in the event of a Democratic filibuster on a Trump nominee to replace, say, Kennedy or Bader-Ginsburg. Nor should Democrats expect any good faith from the party that blocked hearing on Merrick Garland for a year. To trust the GOP in this matter would be like Charlie Brown counting on Lucy not to pull away the football.

Second, while Gorsuch isn’t patently unqualified to sit the bench–and President Trump’s disregard for government and its norms could in theory lead him to nominate someone with no judicial chops at all–Gorsuch is a radical ideological conservative. By all evidence, he is far closer to Clarence Thomas than to John Roberts. Gorsuch does represent a further tilt to the right for the court even beyond the Scalia status quo ante.

Third, base Democratic voters and activists expect Senate Democrats to hold firm on threats to core issues such as abortion rights and labor protections. At a time when the Democratic base is fired up and eager to take on Republicans electorally, a pre-emptive cave from Democratic Senators would convince many newfound resistance activists that elected Democrats are unworthy of time and energy spent on electoral politics.

Fourth and most importantly, Democrats should welcome the elimination of the filibuster on Supreme Court nominees. Few want to speak very loudly of this, but over the long term the filibuster hurts liberal interests more than it helps. That’s why Senate Majority Leader McConnell doesn’t want to pull the trigger on it–not because of Senate traditions, but because he knows that doing so would be a Pyrrhic victory for Republicans. The GOP has shown that it never again intends to confirm the Supreme Court nominee of a Democratic president: even “moderate” John McCain signaled that Republicans would continue to block Garland in the event of a Hillary Clinton victory. Trump’s electoral college victory notwithstanding, the weight of the electoral college is still tilted to the Democratic Party in presidential elections and gets harder for Republicans with demographic change. Meanwhile, the Senate’s lean toward small and rural states gives Republicans a natural advantage there. Over time, a filibuster-free SCOTUS process will benefit Democratic presidents with partisan splits in the Senate. From an optics point of view, it’s better for Democrats in the future if Republicans are the ones to kill the filibuster during Trump’s presidency, rather than allowing Republicans to accuse a future Democratic Senate of enabling an “imperial presidency.”

Schumer is making the right call for Democratic interests in the long term, and should not be swayed by the naysayers.

David Atkins

David Atkins is a writer, activist and research professional living in Santa Barbara. He is a contributor to the Washington Monthly's Political Animal and president of The Pollux Group, a qualitative research firm.