The Corner

Politics & Policy

Filibuster Strategery

Jim Geraghty suggests the Democrats’ filibuster of Judge Gorsuch is self-defeating. Republicans will probably have the votes to end Supreme Court filibusters if Democrats try to block Gorsuch from getting an up-or-down vote. Having made that rules change, they will then make it possible for the next Trump nominee to the Supreme Court—even if that nominee is weaker than Gorsuch, either because he is less professionally distinguished or seen as more ideologically extreme or both—to get confirmed by a simple majority. If Democrats don’t filibuster Gorsuch, on the other hand, they will retain the power to filibuster that next nominee. The Republicans, when they are fighting for that weaker nominee, might not have the votes to make the rules change. And because that scenario will remain open, Republicans might show more restraint in their choice of a nominee for this second vacancy.

I think Geraghty’s logic is sound. But I also think we are dealing with very small changes in probabilities. The hypothetical weaker nominee who won’t motivate Republicans to change the rules for him is also likely to lose a few Republican votes. This year that would probably leave the nominee shy of a majority. In that case, a rules change wouldn’t save the nomination and therefore wouldn’t cost the Democrats anything.

Let’s say that in 2019 Republicans have 55 Senate seats. For a rules change to have hurt the Democrats, we would need a Trump nominee to the Supreme Court who had, say, 52 votes to confirm him but only 48 to change the rules for him. So, that is, we’d have four Republican senators who would vote for the weak nominee but not change the rules for him. Is that scenario possible? Sure. But it doesn’t seem crazy for the Democrats not to place much weight on it in thinking through what their current strategy should be.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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