A provocative thesis by Joe Cunningham, although I think he’s overthinking it.
He's either looking at some pretty particular tea leaves OR is making the biggest bet of his career: Trump will be a one-term president.
— Joe Cunningham (@JoePCunningham) March 23, 2017
This isn't about Gorsuch. Even liberal groups are okay with Gorsuch. This is about Ginsberg and others.
— Joe Cunningham (@JoePCunningham) March 23, 2017
In other words, Schumer wants McConnell to nuke the filibuster. That way, if/when Democrats wipe out Republicans in 2020 by retaking the Senate and the White House, they’ll be able to confirm any left-wing justice they like and there won’t be a thing the GOP can do about it. Just as Harry Reid’s decision in 2013 to nuke the filibuster for presidential nominees blew up on Democrats this year, when they weren’t able to block any of Trump’s cabinet choices, so McConnell’s decision to nuke the filibuster for Supreme Court nominees will be used by the other party to ram through the kookiest kommie for the Kourt they can find four years from now. By Cunningham’s reckoning, today’s filibuster threat by Schumer is him begging McConnell not to throw him in the briar patch.
I don’t buy it, though. If Democrats take the White House and Senate in 2020 and the filibuster for SCOTUS nominees is still intact, they’ll just nuke it themselves. You can imagine the argument: “The Republican Party’s unfair and unacceptable refusal in 2016 to so much as grant Merrick Garland a hearing proves that they can never again be trusted to assess a Democratic Supreme Court nominee fairly and on the merits. Our nomination process has, frankly, been dysfunctional for many years, with presidents of both parties continually threatened with unreasonable resistance to their executive prerogative in filling Supreme Court vacancies. The only way to make sure the people’s will is vindicated is to complete the work begun by Harry Reid, who ended the filibuster for lower-court federal judges, and end it for Supreme Court nominations as well.” Sure, Republicans will howl. But who cares?
And imagine if the gamble suggested by Cunningham doesn’t pay off. Let’s say Schumer succeeds in forcing McConnell to nuke the filibuster … and then Ruth Bader Ginsburg retires or passes away this summer. Thanks to Schumer’s idiocy, the Democrats will have already lost their power to obstruct confirmation, freeing Trump to nominate a justice as far right as Republican centrists like Susan Collins and Lisa Murkowski will tolerate. If Schumer’s gamble goes bust, in other words, he’ll have lost everything. And since, as I say, he’d be in a position to end the filibuster himself if his expectations of a Democratic takeover in 2020 prove true, he’ll have essentially gained nothing by choosing to gamble in the first place. So … why gamble?
I think Schumer’s filibustering for two reasons, both of which have been touched on today by John and Guy. One: He has no choice. The left wants payback for Garland, never mind that Schumer simply has no leverage to stop this nomination. He has to obstruct because his base demands it, even though McConnell can play his trump card and nuke the filibuster at any moment. The goal for Democrats given their position should be nothing more or less than inflicting the maximum amount of political pain on the GOP if and when they do finally end the filibuster — but Gorsuch’s nomination is an almost uniquely bad choice for Dems to try to do that. 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?
The other reason Schumer’s threatening to filibuster, I think, is simply to gain leverage for the Democrats’ odd offer to the GOP confirm Gorsuch in return for a promise that Republicans won’t nuke the filibuster next time. Why any Republican would agree to that when the GOP is holding all the cards here, I don’t know. They could vote tomorrow to end the filibuster and get everything they want on both this nomination and the next. Schumer seems to be hoping that there are enough squishes in the Senate GOP caucus who favor bipartisanship for bipartisanship’s sake — McCain, Collins, Murkowski, Graham, maybe Flake, etc — that there’ll be three suckers willing to take them up on their olive branch. And who knows? The GOP being what it is, maybe he’s right! Look at it this way: If the GOP votes to end the filibuster in order to get Gorsuch through, that’ll put a lot of pressure on Republican moderates in future SCOTUS nominations, especially if the next vacancy that opens up is a left-wing justice. That nomination will change the balance of power on the Court; Democrats will go berserk trying to either keep the seat empty or to force Trump to nominate a centrist — but if the filibuster is gone by that point, they’ll have no ability to do so. Instead, it’ll be the centrists in the GOP’s own caucus who’ll decide whether a “radical” conservative nominee can get 51 votes and be confirmed, in which case they’ll be excoriated by the left, or fall short of 51 and be Borked, in which case they’ll be excoriated by the right. Maybe Collins et al. don’t like the idea of all that pressure being on them. If not, Schumer’s offer of a deal right now gives them an out: Collins could agree right now that she won’t vote to end the filibuster under any circumstances in return for easy confirmation of Gorsuch. Then, when a left-wing seat opens up next year and the entire political universe stares straight at her to see if she’ll vote to confirm Trump’s choice, she can shrug and say, “Hey, don’t look at me. A promise is a promise. I said I wouldn’t vote to end the filibuster, so now you’ll just have to go find eight Democratic votes.” Suddenly the pressure’s off of her and on Joe Manchin, Claire McCaskill, etc. If Schumer’s playing a “long game” here, I think that’s the one he’s playing.