Tale of Two ‘G’s

With Neil Gorsuch Filibuster, It’s Time for Some Game Theory for the Democrats

It would be great for rank-and-file liberals’ morale, and their belief that their party is fighting for them, if its Senators claim Gorsuch’s scalp.

JAMES LAWLER DUGGAN / Reuters

Let’s cut to the chase. If you asked me for my prediction on whether the Democrats will filibuster Neil Gorsuch—the vote is slated for Thursday—I’d tell you that by an oh-so-slight margin I think they probably will. I’ll explain why later, but first let’s break down the categories.

Here, from CNN, is an almost absurdly thorough list of where the Democratic senators stand. This story has 36 Democrats on record as saying they’ll filibuster Gorsuch, which mean they’re going to vote “no” not just on the nomination itself but on the preceding cloture vote. That’s the vote to cut off debate, on which 60 votes are needed.

The 36 includes all the people you’d expect, the ones from safe deep blue states or who don’t face reelection for a while or both. But the list includes a few mild surprises. Claire McCaskill is up this year in a state Donald Trump won by nearly 20 points. Sherrod Brown will be facing a well-financed opponent in a state (Ohio) Trump won by eight points. Brown’s a liberal and probably has a presidential run in the back of his mind should he win reelection this fall, so those would be his reasons, but it still seems like it might be a risky vote. Bill Nelson is up in Florida, which Trump carried, and Tim Kaine is up in Virginia, which Hillary Clinton carried very narrowly.

Next come the three Democrats who have said they’ll vote for Gorsuch, Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia and, just as of Sunday, Joe Donnelly of Indiana. They’re all up for reelection this year, too. I guess activist types are mad at them, but Trump won their states by about 150 points or whatever. It’s hard to hold this against them.

Their votes don’t matter anyway. Democratic leader Chuck Schumer can lose seven Democrats. And this is the point where this drama takes on aspects of game theory. Heitkamp, Manchin, and Donnelly are the 53rd, 54th, and 55th votes for cloture. Who’ll be the 56th, the 57th? And more to the point, who’ll be the 59th and—most dramatically of all—the 60th?

Of the remaining, undeclared nine, the one who seems most likely to join that troika is Jon Tester of Montana. Tester was elected back in 2012 with just 49 percent of the vote.

UPDATE: On Sunday night around 8:30 or so, word came down that Tester will support the filibuster. Well well well!

The other eight are an interesting mix who for the most part are resisting the filibuster for institutional reasons. Here you have Pat Leahy, Dianne Feinstein, Ben Cardin, Chris Coons, Mark Warner, Bob Menendez, Michael Bennet, and Angus King. (Interesting side note: The Judiciary Committee is voting on Gorsuch Monday, and Leahy, Feinstein, and Coons all sit on that committee.)

They don’t like seeing the place get more and more polarized. There have only been four filibusters of Supreme Court nominees in modern U.S. history: Abe Fortas in 1968, William Rehnquist (twice, in 1970 and 1986), and Samuel Alito in 2006. Alito got 75 votes on cloture and 58 on his nomination (in all such situations, some senators vote to allow the final vote but then still vote no on the substance).

They also may sense that Mitch McConnell has the votes to go nuclear anyway. That is, if the Democrats hold the line and block Gorsuch on the cloture, McConnell is expected to move to change the Senate rules so that cloture isn’t needed. He needs 51 votes for that. As there are 52 Republicans, most people assume he has the votes, but when asked directly by Chuck Todd on Meet the Press Sunday, he didn’t say yes (or no). McConnell can afford to lose two Republicans (that would yield a 50-50 result, and Mike Pence would break the tie). Him losing three is pretty hard to envision, given the pressure they’re all going to face to stick with the team. So Gorsuch gets in anyway.

Liberal groups and activists just don’t have the same leverage over Democrats that conservatives have over Republicans. I mean there’s talk radio and Fox and Breitbart and so on, but I also mean the National Rifle Association. The NRA started playing bigly on Supreme Court nominations about a decade ago, and now, it controls Republican legislators on Court nominations just as it does on everything else. When he was blocking Merrick Garland last year, McConnell ruled out a lame-duck session vote on Garland on the grounds that the NRA was against him (he mentioned other groups, but he name-checked the NRA first). This year, at a White House rally-the-troops Gorsuch event, Wayne LaPierre sat next to Trump.

If the Democrats cave, what will happen is that some of the undeclared nine will get together and move as a bloc. They’ll do this to make sure no one has to be the 60th vote—that is, the eighth Democrat to join the 52 Republicans and allow for a final vote. That person would surely face a primary in his or her next race. So they’ll move as a group to make sure it’s 63 or so and no one individual can be fingered as having case the fateful vote.

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Either that or the line will hold. Certainly, the only Democrats who “need” the cover of voting to move Gorsuch through are the four I mentioned—Manchin, Heitkamp, Donnelly, and Tester. The others can all survive what will be seen as an obstructionist vote by Republicans in their states, especially given that McConnell is going to turn right around and do away with the judicial filibuster. So they can say McConnell blew up the Senate.

I’m not sure blocking Gorsuch will accomplish much. Schumer says he wants Trump to consult with Democrats and pick a less extreme nominee. That doesn’t strike me as Trump’s nature. And anyway, McConnell is likely to go nuclear, and we'll end up with Gorsuch anyway.

So if we're going to get him anyway, why not make McConnell push the nuclear button? Saying no to Gorsuch would be great for rank-and-file liberals’ morale, and their belief that their party is fighting for them. There’s a part of me that hates to see all this posturing, but the bigger part of me thinks it’s a scandal that Associate Justice Garland wasn’t seated a year ago.