The Democrats Should Not Filibuster Gorsuch

If they’d boycotted the hearings to begin with, fine. But they’re going to lose this one—and there are even more important fights ahead.

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Judge Neil Gorsuch is likely not going to be a great Supreme Court Justice. Based on his prior judicial opinions and his answers (or often non-answers) to Senate questions, he appears to have a disturbing lack of empathy for people like the freezing truck driver who was fired for making the only human choice possible and leaving his trailer under dire circumstances (two other judges said the firing violated federal law).

Gorsuch’s stated method of deciding constitutional questions is either naïve or dishonest. He can’t possibly believe that the justices resolve hard constitutional cases just by “striv[ing] to understand what the words on the page mean. Not import words that come from us, but apply what you, the people’s representative, the lawmakers, have done.”

The “words on the page” will not tell us anything valuable about balancing the speech rights of corporations against fighting corruption, whether independent prosecutors are constitutional, or whether strict gun laws trump Second Amendment rights. These and other constitutional issues that reach the United States Supreme Court are there in large part because the text and history of the Constitution cannot resolve them.In addition, Gorsuch, when he is confirmed, will be sitting in a stolen seat. Despite a lot of misinformation from Senate Republicans and their followers, not allowing President Obama to name any replacement for Justice Scalia for almost a year contravened Senate norms of fair dealing and set a terrible precedent.

Given all of the above, I fully understand why so many Democrats want to see a filibuster of Neil Gorsuch. In addition to standing up for what is right, such a move would placate and maybe even energize the base of the party. Moreover, not filibustering may well antagonize the base at a time when its momentum and money is sorely needed.

Nevertheless, Senate Democrats shouldn’t take the bait. Leaving the filibuster on the table is the best strategy for people taking a long view of the future of the United States Supreme Court.

The Republicans currently hold 52 Senate seats and Vice-President Pence breaks any 50-50 ties. Well placed folks have told me that the GOP will vote lockstep on the Gorsuch nomination. Thus, just as in 2013 when the Democrats in the Senate ended the filibuster for lower court judges and executive branch nominees by a simple majority vote (the so-called nuclear option), the Republicans will now end the filibuster for Supreme Court nominees if that is necessary to place Gorsuch on the bench. Make no mistake, the GOP is fully committed to Gorsuch.

I am not the only progressive who thinks the filibuster is a mistake. Professor Rick Hasen of the University of California at Irvine explains the risks:

Democrats hold a pair of twos. They don’t have much they can do. Triggering a fight over the filibuster will gain attention, but Democrats can only do it once. The Gorsuch nomination restores the balance of power on the Court to the position it was in before Justice Scalia’s death.

Imagine if in a year or so Justices Breyer, Ginsburg, or Kennedy leave the Court. Then things get MUCH worse from the point of view of progressives. Then Roberts becomes the swing voter and there goes affirmative action, abortion rights, etc. If you think things with the Supreme Court are bad for progressive now they can get much, much worse.

Better to save the firepower for that fight. It is possible that Senators like Susan Collins would be squeamish about such a nominee, and they might not vote to go nuclear. At that point, people can take to the streets and exert public pressure.

The future under a Trump presidency is highly uncertain as scandal after scandal erupts. Should there be another vacancy on the Court (and given the ages of Justices Ginsburg, Kennedy and Breyer, that is highly likely), the political balance on the Court for decades will hang in the balance. The fight over the next seat may well be much more important to moderate conservatives (yes, there are a few left) than the seat once occupied by Scalia. The time for Democrats to go to war is then, not now, especially as this is a battle that cannot be won right now.

I would have been in favor of the Senate Democrats boycotting the hearings and the vote altogether in protest of what happened to Merrick Garland. But it is too late to play that card. Therefore, the only remaining question is how Democrats should play the current hand to maximize leverage and chances of success in the future. This is an issue of strategy not principle. The answer is to put the filibuster card back in the deck. That decision does not guarantee it will work next time but the players both at the table and away from the table may be very different the next time a vacancy arises. Sometimes the best strategy is simply to leave the table and come back to play another day.