A quote that caught my eye from RCP’s analysis of the inevitable confirmation of Neil Gorsuch.
The potential political downside could be much greater for the Democratic Party with Gorsuch than it ultimately was for the GOP with Garland — leaving reason to doubt that Democrats would fully obstruct the nominee rather than seek a more favorable fight elsewhere.
“I think it’s likely he’ll be confirmed,” said one Democratic Senate campaign operative, “and there will be a larger fight on the next one.”
His credentials are impeccable and his character, by seemingly all accounts, is perfectly suited to the job. He’s Scalia without the fondness for throwing elbows. “I have seen him up close and in action, both in court and on the Federal Appellate Rules Committee (where both of us serve),” wrote one legal luminary in the Times this week. “[H]e brings a sense of fairness and decency to the job, and a temperament that suits the nation’s highest court.” Which conservative penned those glowing words? It was … Neal Katyal, former solicitor general for the Obama administration. If Obam-ites are ready to high-five Trump over this guy, there’s no earthly way red-state Democrats are going to sell the public on the idea that he’s some threat to the nation who must be blocked at all costs. The best they can do is concede that Gorsuch belongs on the Court before quickly adding that Merrick Garland does too, and therefore they feel compelled to block anyone Trump nominates unless it’s Garland. “I understand,” Mitch McConnell will say solemnly, before pressing the nuclear button, and the entire caucus will back him. Result: Gorsuch is on the Court, the filibuster is gone, and Trump now has a very wide berth in filling his second vacancy.
Or does he? Jim Newell makes a good point about the fight to come over the next nomination. Sure, Gorsuch might be allowed through because he’s preternaturally qualified and hard to dislike, but what about, say … Ted Cruz as nominee? Is it really the case that every Republican in the Senate is prepared to nuke the filibuster for anyone Trump nominates?
Don’t be 100 percent certain that the Supreme Court filibuster is already effectively dead and just waiting for someone to kill it. Sure, if Democrats “played nice” with Gorsuch—which doesn’t mean they’d take him out to the strip club to celebrate the dawn of his 40-year reign, just that they’d eventually supply the eight votes he’d need to break a filibuster—Republicans could still nuke it the next time to make way for Justice Cruz. The appetite for such an aggressive power play isn’t consistent throughout the Republican caucus, though.
If Trump were to nominate a Justice Cruz, or whoever else might seriously shift the balance of the court the next time, Democratic deployment of the filibuster would be more widely perceived as reasonable: an extraordinary response to an extraordinary action. That would increase the cost of nuking it. As we’ve seen this week, Republican senators such as Lisa Murkowski or Susan Collins are responsive to this cost if vocal constituents lay it squarely before them. All Democratic tactics over the next four years should be about creating political space for the likes of Murkowski, Collins, and other swayables to commit the occasional partisan apostasy. Targeted obstruction does this. Blanket obstruction does not.
He’s referring, of course, to Collins and Murkowski getting cold feet over Betsy DeVos, leaving her confirmation as Education secretary hanging by a thread. Try to obstruct a nominee as unobjectionable as Gorsuch and Collins and Murkowski will feel they have little choice but to fall in line behind McConnell in blowing up the filibuster. After all, whoever replaces him as nominee if he’s filibustered won’t be any better and might be considerably worse. If the nominee is someone like Cruz, though, who’s qualified for the Court but has enemies in the Senate and plenty of right-wing critics after his “vote your conscience” shtick at the convention last year, Collins and Murkowski could walk away from McConnell on the vote to get rid of the filibuster, potentially tanking the nomination.
The interesting question is what would happen if Republicans blow up the filibuster now and then Trump nominates someone “controversial” like Cruz for the next vacancy, with only 51 votes needed to confirm. Collins and Murkowski could walk under those circumstances too, but I think it’d be much harder for them to betray the party on a vote to confirm the nominee than it would to betray the party on a vote to get rid of the filibuster. There are all sorts of principled arguments you can make for the latter — it’s a glorious Senate tradition, we shouldn’t lightly discard the minority’s power to obstruct, yadda yadda. There’s really no principled argument you can make for voting no on the nominee himself. The argument would be “I don’t like Cruz even though he’s very smart, he’s Trump’s choice, and he would be a very dependable conservative vote on the bench.” That’s harder to explain to Republican voters. Newell’s whole point is that Democrats should try to preserve the filibuster as long as they can precisely so that Collins and Murkowski have that “principled” cover available to them to help defeat a truly controversial nominee later. Gorsuch just isn’t controversial in any meaningful way.
There’s a wrinkle in Newell’s argument too, though. What if … Trump ends up nominating someone who’s uncontroversial for the second vacancy too? Read Fred Barnes’s account of how Gorsuch was chosen and you’ll see that Tom Hardiman had a strong advocate in Rick Santorum and was seen within the administration as facing little difficulty in getting confirmed. If there’s another vacancy soon (Barnes claims to have heard rumors that Kennedy might retire this summer), Trump might turn around and nominate Hardiman — and then Democrats will need to find a way to explain to their base, which is spoiling for a fight with Trump, that they’re going to have to let that guy through too. That won’t go down well. They might be forced to filibuster just to show some fighting spirit and then suddenly they’ll be back to square one of Newell’s argument, practicing “blanket obstruction” against a nominee who doesn’t warrant that level of opposition. McConnell will duly nuke the filibuster and that’ll be that.
But that’s getting ahead of ourselves. Newell’s obviously correct that the smart move for Dems is to keep their powder dry, grudgingly let Gorsuch through, and then hope Trump nominates someone more easily demagogue-able next time so that they can knife that person for the gratification of their base. In lieu of an exit question, enjoy this piece from Ben Shapiro on the Gorsuch nomination, responding to Trumpers on behalf of #NeverTrump conservatives everywhere: You’re welcome.