This afternoon, Senate Democrats reached the 41 votes needed to filibuster Judge Neil Gorsuch’s confirmation to the Supreme Court. Unless several Democrats back down in the next couple of days and agree to vote for cloture, which seems unlikely, it is all but certain that Senate majority leader Mitch McConnell will invoke the “nuclear option,” reducing the vote threshold from 60 to 51 and allowing the GOP to end debate and move on to confirm Gorsuch by simple majority.
McConnell has made it clear over the last couple weeks that he is willing to do whatever it takes to get Gorsuch onto the bench, and he hasn’t ruled out using the nuclear option, a move that would give the GOP the upper hand in further confirmation battles should Trump have the opportunity to nominate additional justices.
Aside from the political futility of a filibuster — and the procedural setback to Senate Democrats if they force McConnell to go nuclear — Democrats have shown themselves to be motivated by nothing more than ill-disguised partisanship. Gorsuch has received numerous accolades from both sides of the aisle, including a New York Times column “Why Liberals Should Back Neil Gorsuch,” written by a former Obama-administration official, and even praise from Justice Ruth Bader Ginsburg.
What’s more, his jurisprudence is far from extreme, as Democratic senators and progressive groups have attempted to argue. During over ten years as a federal judge on the Tenth Circuit Court of Appeals, Gorsuch has had just one of his written opinions overturned by the Supreme Court on appeal. (It was overturned just last week.)
And just this morning, the center-left opinion page of USA Today published an editorial entitled “Gorsuch merits confirmation,” saying the nominee “is about the best choice” to be expected from President Trump. Though the editorial laments the fate of Obama nominee Merrick Garland and disagrees with some of Gorsuch’s jurisprudence, it concludes that Gorsuch “is no fire-breathing extremist” and notes that his record of suspicion toward executive-branch power suggests “he might well show the independence the nation needs at this moment in history.”
At the latest count, three Democratic senators up for re-election in 2018 in states Trump won in November have said they’ll vote to break a Democratic filibuster: Joe Donnelly of Indiana, Joe Manchin of West Virginia, and Heidi Heitkamp of North Dakota. In addition, Michael Bennet from Gorsuch’s home state of Colorado has announced he won’t filibuster either. But a handful of other Democrats in a similar electoral situation — Bob Casey Jr. of Pennsylvania, Sherrod Brown of Ohio, Tammy Baldwin of Wisconsin, Jon Tester of Montana, Debbie Stabenow and Gary Peters of Michigan, and Bill Nelson of Florida — will join the majority of Democrats in a filibuster effort.
Given Gorsuch’s stellar record and a week of confirmation hearings that produced nothing objectionable, it is difficult to see how Democrats — and especially those in swing states — will justify this filibuster as anything other than sheer partisan hackery. If McConnell invokes the nuclear option later this week, Democrats will be getting nothing more than what they’re asking for.
Editor’s Note: This article has been amended since its original publication.