3. The next nominee. By filibustering the milquetoast Gorsuch despite the high probability and repeatedly expressed intention of the Republicans to go nuclear, the Democrats have destroyed any leverage they had over the next nominee. Should there be another vacancy under President Trump while the GOP controls the Senate, there will be zero incentive for the President to moderate his choice. It’s not at all clear that Republican senators such as Susan Collins of Maine, Lisa Murkowski of Alaska, Lindsey Graham of South Carolina and other “institutionalists” would’ve gone along with a “nuclear option” to replace Justice Ruth Bader Ginsburg with a nominee more controversial than Gorsuch. But now they won’t face that dilemma.
4. Our political culture. Given the highly charged battle we’ve seen — only three Democrats, from states Trump won bigly (Indiana, Missouri, West Virginia), voted for Gorsuch, and just one more, fellow Coloradan Michael Bennet, voted against a filibuster — too many people will now think of the justices in partisan terms. That’s too bad, but not a surprise when contrasting methods of constitutional and statutory interpretation largely track party politics. Relatedly, confirmation hearings will continue to be Kabuki theater, educational to some about various legal doctrines but not illuminating anything of the nominee’s judicial philosophy. On the other hand, perhaps nominees will occasionally feel free to express themselves, knowing that they don’t need any of the minority party’s votes.
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