Law & the Courts

Democrats’ Filibuster Foolhardiness

Senate Minority Leader Chuck Schumer at a Captiol Hill press conference in February. (Reuters photo: Aaron O. Bernstein)
Forcing the nuclear option for Gorsuch might make liberals feel good about joining the ‘resistance,’ but it won’t help them appeal to centrists in 2018.

With only three Senate Democrats currently lined up to vote to confirm Judge Neil Gorsuch to the U.S. Supreme Court, a filibuster of his nomination appears likely. Yet the knowledge that this won’t prevent him from soon taking his place on the high court isn’t bothering the party’s liberal base. From the moment President Trump put Gorsuch’s name forward, Democrats knew that Republicans wouldn’t hesitate to invoke the so-called nuclear option: Going “nuclear” would change the Senate’s rules to ensure that a simple majority would be enough to secure the nominee’s elevation. But many on the left believe that forcing the nuclear option will be more than a moral victory.

As Democrats see it, the nuclear option would mean that the Left was firmly in charge of the Democratic party, and it would set them up to win back Congress next year. They’d just campaign against what they would depict as a dictatorial GOP. In forcing Gorsuch to depend on a partisan majority for his confirmation, they’d be taking (they hope) a big step toward toppling Trump. But though a filibuster will signal the Left’s dominance of the Democrats, they’re wrong to think this will ensure future electoral triumphs.

If almost all Senate Democrats bow to their base’s demand to go to the last ditch to oppose Gorsuch, it will demonstrate that the party’s activist wing has prevailed against more-moderate members who might be willing to work with Trump under some circumstances. Some Democrats — especially in the 30 states that Trump carried —believe that they must move to the center to win back the working-class voters who gave the president his Electoral College victory. But for those determined to wage a war of “resistance” against a president whose legitimacy they refuse to recognize, everything Trump does must be opposed. Seen in that light, even the futile effort to torpedo Gorsuch — a highly qualified judge without a flaw or scandal in his background that might justify a filibuster — has value because it enforces a rigid ideological discipline even on Senate Democrats facing tough reelection fights in red states.

Those Democrats, such as Montana’s Jon Tester and Missouri’s Claire McCaskill, who are heeding the base’s demand to oppose Gorsuch are making a calculated gamble about their political future. If they vote to filibuster him, they will probably not be challenged from the left during the primaries. They also would be ensuring that the base goes all out to help them in the upcoming midterms. The risk is that a filibuster vote would leave them wide open to the charge that they are obstructionists determined to hamper the president and that they serve only the interests of the Left, even when facing center-right electorates.

If, as most liberals firmly believe, 2018 turns out to be a year in which widespread antipathy for Trump creates a Democratic wave, their wager will pay off. But however confident they might be about Trump’s dragging Republicans down to defeat, predicting elections 19 months in advance is a loser’s game. More to the point, this reasoning ignores the lessons of the 2016 election.

Part of the Democrats’ old coalition defected to Trump or stayed home rather than vote for Hillary Clinton, specifically because they are sick of the Left’s identity politics and ideology. “Resistance” to Trump makes sense if you think his presidency will sink under the weight of his personal flaws or if you have faith that evidence that will emerge to prove alleged collusion between Moscow and the Trump campaign last year. But if the various anti-Trump fishing expeditions now under way reveal nothing of substance, if Russia becomes the Democrat’s version of the GOP’s Benghazi obsession, then predictions that Trump won’t survive won’t help endangered Senate incumbents.

Trump’s favorability ratings are currently deep underwater in national polls, but that is no guarantee that Democrats will win in red states next year, especially if they ally themselves with their party’s leftmost wing.

Their assumption that the nuclear option will be a liability for Republicans next year is equally dubious. After all, Democrats were sure that the GOP’s decision not to give Judge Merrick Garland a hearing was going to be a major asset in the 2016 campaign. But by the fall of last year, Garland’s fate was an afterthought. It might be emotionally satisfying to leftists to continue the dispute even after the 2016 election delivered both the Senate and the White House to the GOP, but it’s hardly a battle cry that can appeal to the political center.

Just as important, Democrats have to ask whether preserving a 60-vote threshold for confirming Supreme Court justices is the sort of thing that will appeal to anyone other than hardcore partisans. After all, the 60-vote standard was unknown until the last decade, and it was fatally undermined by former Democratic Senate leader Harry Reid when he dropped it for lower-court nominations in 2013. Increasing numbers of Americans lament the vicious partisanship of Washington. Forcing the nuclear option on filibusters will only widen the divide between the parties and doesn’t seem like a smart way to appeal to voters in the states where congressional majorities will be decided in 2018.

Hard as it may be to accept, Gorsuch’s impending confirmation, whether or not it happens via putting an end to the filibuster on Supreme Court nominations, will be a victory for Trump and the Republicans. The Left may take comfort in the idea that they have bullied red-state senators into joining the “resistance,” but any idea that this will help them win back the Senate or even save red-state seats is wishful thinking.

— Jonathan S. Tobin is opinion editor of JNS.org and a contributor to National Review Online.

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