The Corner

Politics & Policy

A Filibuster Attempt on Gorsuch Does Carry Some Political Risk

From the first Morning Jolt of the week:

A Democratic Filibuster Attempt on Gorsuch Does Carry Some Political Risk

Democrats will certainly try to filibuster the confirmation vote of Judge Neil Gorsuch to the Supreme Court.

The question is, do forty Democratic senators want to walk the plank on that fight? Like a time-traveler who cannot change the future, this scenario — barring some shocking, previously unknown scandal around Gorsuch — ends with 52 Republicans and a handful of Democrats voting to confirm, replacing Antonin Scalia with a like-minded justice.

The Senate Democrats who are likely to sweat this vote include Tammy Baldwin of Wisconsin, Michael Bennet of Colorado, Sherrod Brown of Ohio, Bob Casey of Pennsylvania, Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Amy Klobuchar of Minnesota, Joe Manchin of West Virginia, Claire McCaskill of Missouri, Bill Nelson of Florida, Debbie Stabenow of Michigan, and Jon Tester of Montana.

These are all states that either Trump won in 2016, or were pretty close. (Trump finished within a point and a half in Minnesota and within 3 points in Colorado. We might even throw in Virginia’s Tim Kaine; Trump was within 5 points in Kaine’s home state.)

Freedom Partners is eager to point out that Donnelly, McCaskill, Tester, Heitkamp, Stabenow, Brown, Casey, Nelson and Baldwin all contended during the nomination of Merrick Garland that the Senate had a duty to hold an up-or-down confirmation vote on Obama’s nominee. (Constitutionally, the Senate doesn’t, but you can argue an up-or-down vote is needed to respect the chamber’s tradition of comity. Of course, once you start insisting that a judge deserves an up-or-down vote, one wonders why this didn’t apply to appellate court nominees like Miguel Estrada, Charles Pickering, and Carolyn Kuhl in 2005.)

Democrats walked away from the 2016 election results, and Merrick Garland’s fate as a Trivial Pursuit answer, concluding that there is no price for blocking a Supreme Court nominee.

But how many Democratic activists really got fired up about Garland last year? The animating drive among the progressive grassroots in 2016 was how awful Trump was, not how awesome Garland was. Maybe it’s because he was seen as a moderate, compromise pick, or maybe there was just too much other news going on throughout the year. Either way, no Democratic Senate candidate ran a television commercial on the issue of Garland’s nomination. No major Democratic figure mentioned his nomination during the party’s convention in Philadelphia. Hillary Clinton barely mentioned Garland on the campaign trail, and indicated that she would probably nominate someone else if elected.

Meanwhile, grassroots conservatives are genuinely thrilled with the Gorsuch pick. Voices on the right who aren’t such big fans about Trump himself are elated over the excellence of his first judicial nomination. It appears that Gorsuch matters to grassroots conservatives a lot more than Garland ever mattered to grassroots progressives.

Assume that some Democrats who insisted the Senate had to vote on Garland turn around and choose to filibuster Gorsuch. Pick any handful out of Donnelly, Nelson, Stabenow, McCaskill, Tester, Heitkamp, Brown, Casey, Kaine, Manchin and Baldwin.

Fast forward to autumn 2018. Do you doubt groups like Judicial Crisis Network, Freedom Partners, Americans for Prosperity, and Heritage Action will be running ads hitting those Democratic senators for their partisan flip-flop? “Senator X said every judicial nominee deserved a vote . . . and then turned around and tried to block Justice Gorsuch.” It will be a midterm electorate, meaning older, whiter, more conservative, in a bunch of older, whiter, and more conservative states . . . 

Sure, Chuck Schumer concludes there’s no political price for blocking a Supreme Court justice. But are all of those red-state Democrats willing to bet their careers on it?

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