Memo to Chuck Schumer: Don't filibuster Gorsuch

So why waste the device, which could be “nuked” by a simple GOP-administered rules change, on Gorsuch? The reception on the right to the strong constitutionalist has been unanimously positive –glowing, even — regardless of feelings about Trump. More surprising was the reaction among many on the left. Amid fury towards the new president for practically everything else, many liberal writers and legal experts were relatively restrained, some complimentary. Acting Solicitor General under Obama Neal Katyal took to the New York Times in a piece titled “Why Liberals Should Back Neil Gorsuch.” Melissa Hart, a law professor at the University of Colorado and Democrat, wrote in the Washington Post: “Judge Gorsuch is brilliant. He is a beautiful writer. He is a warm, decent and thoughtful man.” Even Slate’s Mark Joseph Stern mustered up, “Neil Gorsuch Is Not a Villain.”

One pro-filibuster argument being made is that if it’s not used this round, the filibuster will surely get nuked when the next vacancy occurs — should, say, Ruth Bader Ginsburg step down, leaving the court’s ideological makeup in the balance. The problem here is that this thinking presumes every nominee is identical in jurisprudence and in Republicans’ eyes, and that every proceeding is little more than a party-line vote. Realistically, though, the GOP is not a monolithic bloc; ongoing defections in the Betsy DeVos nomination by Susan Collins and Lisa Murkowski make this clear. And during the last confirmation process for a Republican-nominated justice, Samuel Alito – George W. Bush’s second choice for the spot after a bipartisan effort sank his ill-chosen first pick — GOP support wasn’t quite unanimous, either.