A lot of people are giving advice to the Democrats right now on how (and how much) to oppose Neil Gorsuch as we approach floor action on his nomination to the Supreme Court.
But really the best advice for them is pretty simple: If they think Gorsuch is worse than whoever President Donald Trump would nominate to replace him, they should mount a partywide filibuster against him and force Republicans to change the rules of the Senate if they want him confirmed. If they think a replacement would be similar or even worse, then they should give moderate Democratic senators a green light to vote yes on cloture so that the attempt to block Gorsuch falls short and the filibuster is preserved.
Either way, Democrats should not worry about the reaction — neither extraordinary obstruction nor extraordinary measures in response to obstruction are likely to produce any electoral reaction. People just don’t have the same enthusiasm for Supreme Court confirmation fights that they do for, say, Trump’s travel ban. And they certainly don’t have that kind of reaction to parliamentary rules and tactics.
Senators also should ignore the pleas of activists who see this fight as a test of Democratic resolve. The vacancy is going to be filled by a Trump selection, regardless of how hard Democrats fight. No party that has the votes to prevent it will allow a Supreme Court blockade to continue for very long. So this seat is going to Republicans, no matter what Democrats do. It’s not a test of political courage.
And Democrats should not count on the spectacle of a filibuster followed by Republican leader Mitch McConnell invoking the “nuclear” option to gather much publicity. In 2013, Senate Majority Leader Harry Reid’s actions to change the rules were fascinating to watch … for a handful of people with an unusual interest in congressional procedure. As television spectacle, however, it was less thrilling than “Saved By the Bell” re-runs. Even good Senate floor theatrics are one-day stories at best, and this one won’t be.
This intensity surrounding this Senate moment is owed to the fact that the filibuster on judicial nominations is very close to dead. But it really ended back in 2013. Republicans had blockaded three seats on the D.C. Circuit Court, so then-majority Democrats responded (as they pretty much had to do) by ending executive branch and judicial nomination filibusters — what everyone refers to as the “nuclear option.” But Democrats carved out an exception for Supreme Court confirmation fights. Now, the first time that exception will come into play, Republicans will likely return the favor and go nuclear themselves.
So the main choice here is the one the Democrats have to make. If 41 or more of the 48 Democrats (and independents aligned with the Democrats) oppose cloture, the filibuster will win under current rules, and Republicans will then probably impose new rules.
The problem is there’s not enough information for Democrats to know that this is the perfect time to use what might be their one potentially successful filibuster. There are too many unknowns: when the next vacancy will be, who it would be, and what Republicans would do now and next time.
Indeed, while it appears to be the case that Republicans intend to go nuclear if necessary, even that may not be true. They could be bluffing.
As a supporter of the filibuster, I’d like to see McConnell and Democratic leader Chuck Schumer work out some sort of deal to not only preserve the Supreme Court filibuster, but to restore it for all judicial nominations. Ideally, I’d like to see intense minorities prevail against indifferent majorities when there’s a lifetime appointment at stake. Apparently there was some feint in that direction, but realistically, it’s not going to happen.
And so barring a real compromise, my advice to Democrats would be pretty simple. Forget about long-term strategy and trying to figure out the ideal time to use their Supreme Court filibuster at its most useful moment but before it goes away. That’s just guesswork.
Instead, they should filibuster now if and only if they are confident that Neil Gorsuch would be worse than whoever Trump would replace him with. If so, they should make clear it’s no blockade or revenge for Merrick Garland; it’s a one-time objection to someone they believe is unusually far from the mainstream. And, if so, they should be prepared for the possibility that they might actually defeat Gorsuch and have to live with a replacement nominee.
Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.