With a Democratic Senate, Majority Leader Harry Reid likely would have done exactly what Mitch McConnell did in 2017—abolish the judicial filibuster, and elevate Garland (rather than Neil Gorsuch) to the high court. If Reid had stayed his hand, his successor, Chuck Schumer, might have exercised a “thermonuclear option” of his own: In the 17 days between the start of the new Senate and Donald Trump’s inauguration, Obama could have renominated Garland and a Democratic Senate could have confirmed him. The fallout would have been huge, but Schumer could have pointed to McConnell’s yearlong obstructionism, and the fact that Trump won 3 million fewer votes than his rival.
OK, put that fantasy aside. Instead, look at what would have happened with Trump in the White House and Democrats in control of the Senate. Gorsuch’s confirmation battle becomes much tougher, even if his genial demeanor might have convinced enough Democrats that he was not Antonin Scalia on steroids. More broadly, there is no way that the Senate Judiciary Committee, under the leadership of Dianne Feinstein, would elevate a record number of judges—with views that range from highly conservative to fringe—to federal courts. (One Trump nominee would not agree that the landmark school desegregation case Brown v. Board of Education was rightly decided.) Nor would Feinstein have ignored, as Charles Grassley has done, the traditional “blue slip” power of senators to block the appointments of judges from their home states.