Law & the Courts

The Corner

Gaming Out Democrats’ Filibuster Options for Supreme Court Nominations

To watch the Left debate about whether to sustain a filibuster against Trump Supreme Court nominee Neil Gorsuch is to see a political coalition contemplating self-cannibalism. The victor of this factional feud might have more dominance in the coalition, but the coalition’s power will on the whole be diminished.

From a strategic viewpoint, Senate Democrats have every incentive to let the filibuster for Supreme Court nominees live another day. Mitch McConnell knows that there will be a political cost for going nuclear on the Supreme Court filibuster, and he does not seem very eager to pay it. Nor does there seem to be that great of an appetite for working around the Senate filibuster for Supreme Court nominees. Nearly every signal that Republican Senate leadership has sent indicates that the party would very much like to approve Gorsuch — and any other Trump Supreme Court nominee — through the regular order of the Senate. This situation gives Senate Democrats some small measure of power: As long as the filibuster persists, their expectations become a variable that has to be factored into the calculus of any Supreme Court nomination. That variable may or may not have that much weight — but it will have some weight.

In the lead-up to the Gorsuch nomination, some on the left denounced the idea of appointing William H. Pryor of the Eleventh Circuit to the Supreme Court while implying that maybe — just maybe — someone like Neil Gorsuch would be an acceptable candidate. CBS reported that Democratic opposition to Pryor convinced GOP leaders in the Senate to suggest the difficulties of a Pryor nomination to the Trump White House. It’s unclear exactly how much influence this opposition had on President Trump’s decision, but it was certainly considered.

Nuking the Supreme Court filibuster, however, also vaporizes that consideration. Because of Harry Reid’s detonation of the nuclear option, Senate Democrats were essentially impotent about Trump’s cabinet appointments. Almost certainly, some of the choices would have been different if Senate Democrats had been able to filibuster the nominees. In expanding the power of the majority, Harry Reid simultaneously weakened the minority and Senate norms of consensus. Moreover, the existence of a possible filibuster for a Supreme Court nominee also gives some more maneuvering room to members of the president’s own party (and this is true for whoever is president): They can use the objections of the minority party as a way of expressing skepticism about a nominee without openly attacking the president’s choice.

By not sustaining a filibuster against Gorsuch, Senate Democrats continue to have leverage over Trump’s future Supreme Court nominees. Note that this is not choosing not to use leverage now in order to save it for another fight; the existence of the filibuster gave Democrats some small leverage over the Gorsuch pick, and, as long as the filibuster remains in place, they continue to hold that leverage. This leverage might be especially important if one of the left-leaning justices retires. Democrats might not be able to get Trump to appoint another Sotomayor, but another Kennedy seems more doable. This leverage might frustrate those conservatives who would prefer more originalist nominees, but, over the long term, maintaining the minority voice in the Senate might be worth the deferral of certain ideological priorities in the short term. Republicans will not defer those priorities, though, if they believe that Democrats will sustain a filibuster against any Supreme Court nominee to the right of David Souter.

It seems fairly clear that, for the Democratic coalition as a whole, there are many benefits for not goading Republicans into nuking the filibuster. That might not be true for some factions within the Democratic party, however. Some on the left would like to position themselves as the defenders of true progressive “purity” against those mealy-mouthed compromisers. For those self-anointed avatars of “resistance,” having the GOP nuke the Supreme Court filibuster would be a badge of honor: It would be a sign that progressives were willing to fight for their principles. The call to sustain a Gorsuch filibuster could thus be used as a trumpet to rally progressive activists and a club to attack factional rivals on the left. The fact that a sustained Gorsuch filibuster would actually end up weakening the power of Senate Democrats is an unfortunate side effect of this enterprise of demonstrating progressive “purity.”

As some Republicans can no doubt attest, parties that play the game of “purity” through self-immolation usually end up losing. Just ask Senator Chris Coons, the Democrat from Delaware who in no small part owes his seat to Republican indulgence in that game.

Fred Bauer — Fred Bauer is a writer from New England. His work has been featured in numerous publications, including The Weekly Standard and The Daily Caller. He also blogs at ...

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