On Tuesday night, in a reality TV–flavored unveiling ceremony, President Trump handed the red judicial rose (figuratively speaking) to federal appellate Judge Neil Gorsuch, his choice to fill the Supreme Court seat vacated last year with the death of Justice Antonin Scalia.
Gorsuch, 49, has all the right credentials for the job — Columbia and Harvard Law, a mother who worked in the Reagan administration, a Supreme Court clerkship under his belt, and a seat on the U.S. 10th Circuit Court of Appeals in Colorado. He's a born Westerner and a Protestant vying for a seat on a high court full of coastal Catholic and Jewish jurists. Democratic leaders are voicing their opposition to Gorsuch by noting his conservative ideology and conservative judicial opinions, while Republicans, even those leery of Trump, are celebrating the nomination for the same reason — this is why many of them reluctantly backed Trump.
But while the Democratic base and Sanderista liberals are on the verge of mutiny at the lack of fire and brimstone from Democrats in Congress, Republicans hold a 52-48 vote advantage in the Senate. The only thing standing in the way of Gorsuch replacing Scalia on the Supreme Court (ideologically as well as physically) is the filibuster.
Democrats have threatened to block Gorsuch because Senate Republicans brazenly refused to even hold a hearing for the nominee President Barack Obama put forth almost a year ago, Merrick Garland, and Senate Majority Leader Mitch McConnell has threatened to push Trump's nominee through using whatever means necessary — in other words, killing the filibuster for Supreme Court nominees. Some Democrats are balking, telling CNN that it might be better to preserve the filibuster for the next Supreme Court fight, especially if a liberal seat is on the line.
A filibuster requires 41 of 48 Senate Democrats and allied independents putting their feet down. Believing the filibuster will survive the next battle requires trusting McConnell. It isn't just the progressive left that thinks that's a fool's errand.
Jonathan Chait, nobody's idea of a hard-lefty, argues that trying to save the filibuster for the next nominee is "fantastical" and pointless. "There is no 'leverage' gained by a weapon one's opponent can disarm at will," he writes at New York. In negating Garland's nomination, Republicans have changed the rules of politics completely, and now "a president needs 50 Senate votes to fill a seat, or it will go unfilled." That's bad for democracy, but it's the new reality, he writes, and "Democrats have an extremely simple choice. They can make McConnell abolish the filibuster, or wait for the day when McConnell attacks them for doing it. It is McConnell, [and] his extraordinary blockade tactic, who has functionally changed the rules of the game. He should be forced to do it in name."
David Leonhardt at The New York Times is on the same page, calling the Garland snub "a raw power grab" — albeit a successful one — and noting that Republicans hinted before the election "that no Hillary Clinton nominee would be confirmed, either." Democrats can't stop Gorsuch if McConnell goes nuclear, but they at least "need to make sure that the stolen Supreme Court seat remains at the top of the public's consciousness," he writes. "When people hear the name 'Neil Gorsuch,' as qualified as he may be, they should associate him with a constitutionally damaging power grab." Leonhardt continues:
Democrats should not weigh this nomination the same way that they've weighed previous ones. This one is different. The presumption should be that Gorsuch does not deserve confirmation, because the process that led to his nomination was illegitimate.... I understand that all of these options sound aggressive and partisan. But Democrats simply cannot play by the old set of rules now that the Republicans are playing by a new one. The only thing worse than the system that the Republicans have created is a system in which one political party volunteers to be bullied. [The New York Times]
Whether you agree with him or not, Gorsuch is a qualified and respectable candidate for Supreme Court justice. But so was Merrick Garland — Republicans never really disputed that. In fact, in 2002, Gorsuch called Garland and John Roberts, now the chief justice, "among the finest lawyers of their generation" and chastised the Senate for denying them votes for purely political reasons.
Don't be surprised if, in Gorsuch's confirmation hearings, a lot of irked Democrats ask some form of the following question: "Judge Gorsuch, given your fealty to constitutional originalism and your past statements, do you believe Judge Garland should have received a confirmation vote for the seat you now aspire to fill on the Supreme Court?" Whatever his answer, that should at least make for good reality TV.