In the course of noodling over whether the Senate D’s should filibuster the Gorsuch nomination, I just can’t see why not.
I don’t say that lightly. While I’ve been a critical observer of filibuster abuse for a while (so I can’t say I’d miss it), I worry about a less deliberative Senate. But given how severely trust, compromise, and thoughtfulness have devolved, the deliberation train left the station long ago, with Judge Merrick Garland tied to the tracks. At this point, I see no clear logic that points D’s toward cooperation.
A few facts/assumptions to frame the discussion. For what follows to make sense, these must be at least broadly correct.
1) D’s believe Judge Gorsuch is too conservative and threatens to overturn established case law in areas about which they care deeply, like abortion and worker rights. I think they’re right.
2) D’s have the votes to filibuster and thus block the nomination.
3) Senate R’s are telling the truth when say they that if D’s filibuster Gorsuch’s nomination, even though they’d rather not, they will “go nuclear” (change the rules so that only a majority vote is required). I believe them.
Based on those assumptions, let’s see what paths lead D’s to the logic of filibuster vs. cooperation.
The goal of the D’s is to have the R’s nominate a justice where #1 one does not hold, i.e., a justice who they might not consider too conservative. In that case, they have two options: filibuster or cooperate with conditions.
They can filibuster Gorsuch et al until R’s put up no Morsuch candidates. But based on #3, that won’t work. If they filibuster, R’s go nuclear and Gorsuch is on the court.
So they should cooperate, right, and give the R’s the votes they need to get to 60? No, because that too lands them with Gorsuch.
What if they decide a second-best option is to cooperate with conditions? Give the R’s Gorsuch (don’t filibuster) based on a deal that the next time there’s a Supreme Court opening—which might not be too far away—the R’s will put up a less conservative candidate. This is the tactic the WaPo editorial board suggests today: “…postponing the discussion over abolishing the filibuster until Mr. Trump’s next nomination, if any, would put Democrats in a stronger position and at least might pressure the president to select a more reasonable nominee next time than he otherwise might.”
This strikes me as a highly risky strategy. First, if the R’s are still in the majority next time there’s an opening, the D’s would have to trust Trump and the R’s to meet the conditions of this second-best deal. There’s no good reason to do so. Once R’s assert, as they have, that they’ll go nuclear if they don’t get their way, the D’s would be reckless and irresponsible not to believe them, either this time or next time.
Second, what if the Senate majority flips by the time of next opening? Then D’s have given away a too conservative seat to Gorsuch, but, as part of the deal, will—assuming they stick to the deal—have to put up a moderate-at-best nominee with whom R’s are OK. That’s a bad deal versus trying to neutralize Gorsuch with a liberal counterpart, passed with a simple D majority.
So the D’s best strategy is not to cooperate, i.e., to filibuster.
The problem is, once R’s invoke #3, there are no reliable benefits to the D’s from cooperating. Even if they could trust the R’s to put up a more moderate nominee next time, unless they’re convinced they’ll never be back in the majority, they end up with a too-conservative court relative to filibustering and invoking the nuclear option that they will then take advantage of if their time comes. It may sound counterintuitive, but once Senate leader McConnell brought out the nuke, a move that showed without doubt that R’s will do whatever it takes to move the court to the right, I see no obvious benefit to D’s of not forcing him to use it.