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Law & the Courts

Democrats Aren’t Thinking Ahead to When They Might Need the Filibuster

From the first Morning Jolt of the week:

Democrats Aren’t Thinking Ahead to When They Might Need the Filibuster

Ari Melber of MSNBC: “The GOP made the Garland debate about the seat and they won; Democrats making Gorsuch debate about the man and may lose.”

Change “may” to “will” and that’s a pretty good summation. This can end with Neil Gorsuch on the Supreme Court and the Senate filibuster intact, or this can end with Neil Gorsuch on the Supreme Court and the Senate filibuster nuked. Your call, guys.

Some Democrats may conclude that because it is likely that the filibuster will get nuked someday, they might as well get it over with and make Republicans nuke it now. But they do not appear to be thinking ahead to one not-so-crazy scenario.

When have Democrats come closest to victory in the Senate since January? You’d have to say the nomination of Betsy DeVos to be Secretary of Education, where it was a 50-50 split and Vice President Pence had to come in to be the tie-breaking vote. Republicans Susan Collins and Lisa Murkowski were willing to cross party lines, demonstrating that Senate Republicans don’t march in lockstep. A GOP vote against a Trump administration nominee is rare, but it does happen. Democrats learned the hard way that they shouldn’t have nuked the filibuster for cabinet nominations and lower-court judges.

Suppose that in the coming year, one of the non-conservative/originalist/strict constructionist judges steps down or passes away. In September, Trump offered a list of 21 judges and legal minds and declared, “This list is definitive and I will choose only from it in picking future Justices of the United States Supreme Court.” The only name on that list that isn’t likely to get 52 Republican votes is Mike Lee, because senators don’t usually vote for themselves as nominees.

But imagine that Trump picks someone else. We can skip past the nominations of Judge Judy, Pirro, Dredd and Reinhold, but let’s assume Andrew Napolitano is right when he boasts that Trump is considering nominating him for the Supreme Court. Or Trump nominates his sister, or he nominates any figure who leaves conservative legal minds unnerved from a thin record or other flaws.

In other words, imagine Trump nominating his own version of Harriet Miers.

In that scenario, not only would Democrats be likely to have the votes to filibuster the nominee, but they might have some Republicans willing to join as well. Mitch McConnell and other Senate Republicans will nuke the filibuster without a second thought when it’s being used to block a sterling judge like Gorsuch.

Using the tactic now has persuaded even the most conciliatory Republicans that Democrats will filibuster any Trump nominee, regardless of his or her qualifications. As Sen. Chuck Grassley – hardly a frothing-at-the-mouth bomb-thrower – writes today, “It’s become abundantly clear that if the Democrats are willing to filibuster somebody with the credentials, judicial temperament and independence of Judge Gorsuch, it’s obvious they would filibuster anybody.”

But what if the filibuster was used against some future nominee who generated reasonable, non-ideological objections? Then it would be a dramatically different story.

In other words, Democrats might want to use the filibuster later, in circumstances it’s more likely to work. Of course, this would require Senate Democrats to tell the party’s grassroots that they can’t always get what they want.

But no political leader wants to tell their party’s grassroots that these days, huh?

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