An excellent point that’s been lost in the shuffle today:
Chuck Schumer made a terrible miscalculation in filibustering a qualified, bulletproof nominee like Neil Gorsuch when he was not changing the balance of the court. Now that the swing vote is up, a simple majority will decide the Kennedy seat. Dems have no options.
— Matt Mackowiak (@MattMackowiak) June 27, 2018
Can I quote myself from the Gorsuch confirmation process? March 23, 2017:
Gorsuch’s nomination is an almost uniquely bad choice for Dems to try to [filibuster]. He’s so genial and his confirmation hearing was so uneventful that the public won’t understand why Democrats are so militantly opposed to him. To filibuster Gorsuch is to say that anyone Trump nominates should be filibustered, which is unreasonable. McConnell will call it “mindless obstructionism” and … that’s exactly what it’ll look like. A perfect moment to use the nuclear option! The smarter strategic play for Dems would be to wave Gorsuch through and wait for a truly controversial nominee to test McConnell on the filibuster. If Trump nominates Pryor for the next vacancy, that’s when Democrats can go to the mat and dare the Collinses and Murkowskis across the aisle to nuke the filibuster and help confirm someone who called Roe a constitutional “abomination.” They might win that dare, and if they do, that might scare Republican centrists away permanently from ending the filibuster. If you dare them to oppose a rule change over the inoffensive Gorsuch, though, you’re going to lose that dare. Then the filibuster will be gone. And then what?
And then what? Imagine if Schumer had freed red-state Dems to support Gorsuch last year. That would have been painful for him, as the left would have bristled at seeing him refuse to battle against Merrick Garland’s usurper, but it would have been the right strategic choice. By leaving the filibuster intact, Schumer would have been preserving his leverage for a moment when the political climate was less favorable to Republicans — say, just before the midterms, when the fifth vote on the Court for upholding Roe v. Wade is suddenly in play. If the filibuster still applied to SCOTUS nominations, McConnell would have a very anxious choice right now about whether to nuke it with the stakes on the Court suddenly as high as they are and with Democrats prepared to make all sorts of hay in the midterms from his decision to go nuclear.
And that assumes that he’d even have the votes to go nuclear. He might not. How confident are you that Susan Collins and Lisa Murkowski would vote to end the filibuster at a moment like this, when the swing vote on the Court is suddenly in play and abortion’s legality is suddenly uncertain? The GOP might choke on the nuclear option. And if it did, Schumer would have a de facto veto over Trump’s nominee to replace Kennedy, one he might use to demand that Trump nominate someone who promised to uphold Roe. It may not be an exaggeration to say that Schumer’s choice to placate the left by futilely filibustering Gorsuch has created a situation where Trump can now install the fifth vote on the Court for overturning legalized abortion. After all, even if Collins and Murkowski vote no on confirming the eventual nominee, it’s conceivable that Joe Manchin and Joe Donnelly will vote yes. They would never — never — vote with the GOP to end the filibuster, though.
This, however, I think is too optimistic. Fifty-five votes? What?
Any serious potential nominee is — barring a shocking discovery — essentially a lock to get at least 55 votes. The vote will be before the midterms. Dem Senators defending seats in states Trump won have little to gain and lots to lose in opposing, bc they can’t block the nominee.
— SCOTUSblog (@SCOTUSblog) June 27, 2018
Democratic hyperbole about The Fate Of The Republic resting on this confirmation vote will be so intense that it’s just not true that red-state Democrats will have “little to gain” by opposing Trump’s nominee. Their own base is going to go berserk if they vote to confirm, especially if Collins and Murkowski vote no because the nominee seems inclined to overturn Roe. That’s the beauty of Kennedy’s retirement as a matter of pure electoral politics for the GOP. Red-state Dems are destined to royally piss off either the blue minority they’re relying on back home or the red majority they’re hoping to win over. Manchin and Donnelly and the rest are praying that McConnell holds his caucus together and the nominee gets confirmed on a party-line vote; if he can’t then their votes matter enormously and that’s no-win for them. Vote to confirm and furious lefties stay home. Vote to block and furious Trumpers turn out to defeat you, with Trump egging them on via Twitter. The worst-case scenario for McConnell and the White House may be that the nominee is borked but Republicans gain seats because of it in the Senate this fall — which would mean a larger GOP majority to confirm the next nominee in January.
Or maybe even the same nominee. Imagine that. Trump’s pick is blocked 49/50 when Collins and Murkowski join Democrats in opposing him or her. Angry Trumpers storm the polls in red states this fall and oust Manchin and others. The Republican Senate majority grows, at which point Trump renominates the same person in January and the new Senate confirms him or her 51/49 or whatever. It could happen! But be careful what you wish for: As a friend reminded me today, Roe getting overruled before 2020 might not be ideal for POTUS’s reelection bid.
Anyway, names being kicked around today to replace Kennedy are Brett Kavanaugh, a respected conservative judge and former Kennedy clerk, and Amy Coney Barrett, whom Trump just appointed to the Seventh Circuit last year. Both are highly likely not to go Souter on the GOP, although Barrett’s past comments about Roe might make her a nonstarter with Collins and Murkowski. It’ll be hard for them to confirm anyone but exceptionally hard to confirm someone who’s given people reason to believe that she will in fact vote to end Roe.
In lieu of an exit question, a little trip down memory lane. Don’t forget to thank dopey Harry Reid today for his part in bringing us to this moment by ushering in the age of filibuster-nuking.
— America Rising Squared (@ARSquared) April 4, 2017