It has been something of a mystery why Democrats are driving so hard toward a filibuster that seems destined to result in the GOP going nuclear but a report today at the Hill suggests an answer. Progressives think Senate Majority Leader Mitch McConnell is bluffing.
Adam Green, co-founder of the Progressive Change Campaign Committee, called the premise of not filibustering Gorsuch to preserve the filibuster in the future absurd.
“Going along with a right-wing justice so later on you have the right to block a right-wing justice is ridiculous,” he said. “That’s why we’re urging Democrats to filibuster.”
Green added that said it’s not clear Senate Majority Leader Mitch McConnell (R-Ky.) actually has the votes to “go nuclear.”
“It will be a challenge for McConnell to get the votes and we can’t let him win something as important as a Supreme Court seat on a bluff,” he said. “That’s crazy.”
Let’s just review the facts here. On Tuesday, McConnell said flatly that Judge Neil Gorsuch would be confirmed to a seat on the Supreme Court next Friday. McConnell said this despite the fact that Democrats have organized a serious filibuster effort which, as of this morning, has 37 Senators saying they will oppose Gorsuch. There’s really only one way to interpret McConnell’s certitude that Gorsuch will be confirmed: He’s prepared to go nuclear. And the fact that Senators Orrin Hatch and Lindsay Graham have both indicated they are ready to push the button suggests McConnell already has some Senators eager to go along.
Ed touched on this yesterday but even Democratic Senator Claire McCaskill realizes this filibuster is likely to drive the GOP to go nuclear. “They’re not going to let us do that too long before they move it to 51 votes,” McCaskill told a group of Democratic donors. She added, “God forbid, Ruth Bader Ginsburg dies, or (Anthony) Kennedy retires or (Stephen) Breyer has a stroke or is no longer able to serve. Then we’re not talking about Scalia for Scalia, which is what Gorsuch is, we’re talking about Scalia for somebody on the court who shares our values.”
That’s a pretty good summary of what could very well happen here before Trump leaves office. And yet, from the excerpt above, it’s clear progressives don’t really believe it. As Adam Green says, they don’t want to lose to McConnell on a “bluff.”
What I don’t think Green and others realize is that efforts to paint Gorsuch as a right-wing extremist have already failed. A plurality of Americans believes he should be confirmed despite the low approval ratings for the President who nominated him. This is a losing battle.
In addition, Democrats really would have an easier time making the case against a conservative judge who was replacing a progressive on the court. Most Americans can’t even name a single sitting Justice. So this battle is not about American’s detailed knowledge of the Court and it’s decisions. It’s much simpler than that. Most people are basing their judgment about these nominees on something like ‘what sounds fair.’ It sounds fair to most Americans to replace Justice Scalia with a similarly conservative judge. But it will sound less fair to replace, say, Justice Ginsburg with a very conservative judge.
But none of that will matter if the nuclear option has already blown away the filibuster. Democrats are taking a huge gamble here that McConnell is bluffing. There’s a very good chance it could backfire on them in a spectacular way.