Legit surprising to find a quarter of Democrats in Gorsuch’s corner, although I wouldn’t read too much into the paltry share of opponents. Remember, Americans are in a perpetual coma when it comes to key developments on the Supreme Court. There’s “only” 39 percent opposed because many voters simply tune out of SCOTUS stuff, even when Chuck Schumer’s banging pots and pans together and proclaiming the fierce moral urgency of blockading a guy widely recognized by pretty much everyone who knows him as a sterling choice for the Court.
On the other hand, if the 39 percent figure is artificially deflated due to general public SCOTUS ignorance, so is the 44 percent plurality that wants him confirmed. As the country gets more and more bitterly polarized, 44/23 may come to be seen in time as a relatively impressive show of public consensus.
Politico poll: Americans support Gorsuch confirmation by 21-point margin, fewer than one-in-four are opposed: pic.twitter.com/T7lvvsyuTQ
— Guy Benson (@guypbenson) March 29, 2017
Even with numbers like that, from Schumer’s perspective the filibuster’s arguably still worth doing for political reasons. Many of the 39 percent who care about this are probably activists who reaaaaally care about it and will act accordingly if Schumer disappoints them. I’m perversely impressed with how many Senate Dems seem willing to follow him on this fabulously stupid strategic blunder too: With only two Democratic votes for cloture in the bank (Manchin and Heitkamp) and 29 Dems already firm no’s, Politico notes that there aren’t many potential yays still out there in order to get to 60. Gorsuch’s likeliest path is to get Jon Tester, Claire McCaskill, and Joe Donnelly — all of whom come from landslide Trump states — plus Michael Bennet from Gorsuch’s home state and independent Angus King of Maine. And even that would leave him stuck at 59, assuming Republican Johnny Isakson recovers from back surgery quickly enough to make the vote. Pat Leahy could be the 60th vote, but if not him, who?
The votes really might not be there. Which is why McConnell is reaching for the launch codes:
Mitch McConnell told his leadership team in private this week what’s becoming increasingly obvious on Capitol Hill: Supreme Court nominee Neil Gorsuch probably won’t get 60 votes to avoid a filibuster.
But the Senate majority leader had an equally pressing message: Republicans should have no compunction about pulling the trigger on the “nuclear option” — with Democrats resisting a high court nominee as well-pedigreed as Gorsuch.
“Feel no guilt,” McConnell said, according to attendees.
Read any pro-filibuster liberal commentary and you’ll find that it always reduces to the same point, which is that Republicans are supposedly destined to nuke the filibuster at some point. If you give Gorsuch a pass, they’ll just go nuclear for Trump’s next nominee, in which case why give Gorsuch a pass? If McConnell’s willing to take the plunge and thinks he has 51 votes to do it, put him to his proof. But that’s stupid, as Damon Linker rightly explains:
Whereas allowing Gorsuch to succeed Scalia confronts Democrats with an even conservative-for-conservative swap, the next death or retirement from the court may well prove far more threatening. Liberal Justice Ginsburg is an 84-year-old two-time cancer survivor. The next oldest justice is 80-year-old swing-vote Justice Kennedy — a man who has contributed crucially to landmark (but still-contested) decisions on abortion (Casey) and same-sex marriage (Obergefell).
This means it’s likely that the next Supreme Court vacancy will be just as high stakes for Democrats as the current one is for Republicans. That is when Democrats will need the filibuster.
But wait — won’t Republicans simply vote to eliminate the filibuster whenever Democrats attempt to use it against a Supreme Court nominee, whether it’s now or during a future confirmation battle? Maybe. We can’t be sure. But I suspect there’s a greater likelihood of McConnell’s parliamentary gambit prevailing when it’s “their” seat at stake, which is right now. All it would take is two Republican senators to refrain from supporting the nuclear option for it to fail — and that’s more likely to happen at a moment when partisan imperatives are somewhat less heightened on the right, allowing considerations of institutional tradition and collegiality to prevail.
Correct. You’re more likely to see Susan Collins’s or Lisa Murkowski’s bipartisan instincts kick in when a purple or blue seat on the Court is in play than when a deeply red one is. They’re also naturally less inclined to let Democrats filibuster the new president’s very first nominee than they might a second or third, especially when that nominee is as inoffensive as Gorsuch. It’s not impossible that Schumer could convince three moderate Republicans to oppose McConnell on nuking the filibuster, denying him the votes he’d need to change the rules, but Gorsuch is weak ground on which to fight that battle. As Mike Lee put it at a pro-Gorsuch rally today, “It’s quite clear that if he isn’t qualified, then nobody is. If you’d be filibustering a judge like this it’s obvious you’d filibuster anyone.” Right, and even Collins and Murkowski aren’t going to let Democrats do that. So if Schumer forces them to go nuclear, they will — and once the filibuster’s gone, it’s gone for every Trump nominee to come, no matter how “extreme.” That’s what Linker’s worried about.
A better Democratic argument, I think, is that with the GOP’s Senate majority so narrow, it doesn’t much matter — in the near term — whether the filibuster is nuked or not. Even if they get rid of it for Gorsuch, clearing the way for a “radical” Trump nominee for the next vacancy, McConnell will still have the problem of getting Collins and Murkowski, etc, to vote to confirm the radical. That’ll be difficult, filibuster or no. But looking further out, what if Trump’s job approval rebounds and the GOP takes advantage of a favorable map in 2018 to add, say, four seats to their current total? Imagine Trump nominates a “radical” in 2019 and Collins and Murkowski and one or two others bail out — but because there’s no filibuster anymore, the radical is easily confirmed anyway. Democrats might reply that any Republican willing to vote yes on that nominee would be willing to vote yes on eliminating the filibuster too if it was still intact at the time, but I’m not sure that’s true. The politics of making a move that momentous are more difficult if members of your own caucus are out there claiming that the nominee’s unacceptable. They’re better off saving their filibuster for a nominee who at least arguably deserves it, but if the left wants to dive off this cliff, hey.
Here’s Ted Cruz speaking at today’s pro-Gorsuch rally. By the way, an interesting footnote here from Jon Tester: Allegedly, Chuck Schumer isn’t whipping votes in support of a filibuster. Tester thinks that’s because Schumer knows it won’t matter, but that’s hard to believe. Maybe … Schumer knows a filibuster is stupid under the circumstances and kind of wants it to fail?