Senate Democrats, scrambling to state their base’s desire for scorched-earth opposition to the Trump administration at every turn, seem less and less likely to let Neil Gorsuch ascend to the Supreme Court under the normal rules of Senate procedure. Politico reports:
Supreme Court nominee Neil Gorsuch’s path to 60 votes is rapidly closing — setting the stage for a nuclear showdown in the Senate as soon as next week.
Senior Democratic sources are now increasingly confident that Gorsuch can’t clear a filibuster, saying his ceiling is likely mid- to upper-50s on the key procedural vote. That would mark the first successful filibuster of a Supreme Court nominee since Abe Fortas for chief justice in the 1960s.
If Democrats go down this road, Republicans are likely to nuke the filibuster and force Gorsuch through on a simple majority vote. But there is a non-negligible chance this could fail: John McCain sounded a note of skepticism about the nuclear option earlier today. And three defections in the Republican caucus would be enough to keep the filibuster in place and keep Gorsuch on the Tenth Circuit.
If they are faced with a filibuster, however, Republicans should not only nuke it, but nuke it with purpose and enthusiasm.
Democrats allege that the Republican stonewalling of Merrick Garland during the last year of President Obama’s term was unprecedented (one reason they are playing hardball on Gorsuch). But even if Republicans did set a new precedent, it was a rather narrow one: Namely, that if he does not have a Senate majority, the President cannot fill a Supreme Court vacancy in the year before an election.
In a healthy constitutional system, with a higher level of bipartisan trust, the Garland precedent would probably not have been established. But it is not itself fatal to the Supreme Court’s functioning. It just means that seats might in rare occasions go vacant during election years, to be filled shortly after.
Indeed, even a more extreme version of the Garland precedent—that a president can’t fill a Supreme Court vacancy unless his party controls the Senate, even if it’s not an election year—is workable, if perilous. Presidents usually have a Senate majority sometime during their terms. There might be four-year vacancies, but the Court would still be replenished.
A successful filibuster of Gorsuch would set a different precedent altogether: Namely, that a President can’t fill a Supreme Court vacancy even with a thoroughly mainstream nominee unless his party controls a 60-seat Senate supermajority. In other words, that new justices can only be seated during truly anomalous periods of one-party dominance that sometimes don’t come around for decades. Needless to say, this scenario is impossible to sanction: the Court would wither and its credibility would crumble.
A Democratic filibuster must be met with a swift nuclear response—not to ensure conservative judicial outcomes, but to preserve the Court as an institution at a time when so much of the rest of our political order is under strain.