If you were too busy to catch the first day of Judge Neil Gorsuch’s confirmation hearing to be the next Associate Justice of the Supreme Court, rest assured: You didn’t miss much of anything. The opening day of the four day-long hearing was jam-packed with senators giving lengthy speeches about the importance of an impartial, independent justice interpreting the law free from political and ideological bias. Gorsuch, with his silver hair, sterling reputation, and lengthy resume in the world of jurisprudence, was forced to sit and listen to the speeches with a constant smile on his face for the cameras.
But the opening day is just that: the preclude to what will be an exhaustive and deep-dive into the judge’s career (as it should be; we’re talking about a lifetime appointment to the nation’s highest court after all). It may not look like it now, but the Gorsuch confirmation hearings could prove to be a potential breaking point in the history of the US Senate—the “world’s greatest deliberative body” that has turned into a partisan-infected debating society over the last decade. Senate Democrats, already relegated to minority status in Washington, will soon have to make the most difficult choice that the caucus has had to make this year: Should Gorsuch’s nomination be filibustered?
Democrats certainly have the numbers to throw sand in the gears if that is indeed the strategy they wish to pursue. Gorsuch needs 60 votes to end debate on his nomination; because Republicans only have a 52-seat majority in the chamber, Mitch McConnell & Co. need to bring eight Democrats along with them in order to advance Gorsuch to a final vote. If Chuck Schumer can keep his Democratic colleagues together lock, stock, and barrel, the Democrats can torpedo Gorsuch’s shot at the Supreme Court. Liberal organizations across the country that are still angry about the Republicans’ stonewalling of Judge Merrick Garland, President Barack Obama’s Supreme Court nominee, would rejoice. The Trump administration would be dealt a severe political defeat at a time when the White House is already dealing with several brush fires in multiple directions. And Senate Democrats will become relevant again in Washington rather than a bunch of spectators chirping from the peanut gallery.
And yet the downsides of such an obstruction strategy are considerable. In addition to being portrayed as a bunch of whiners who put party and ideology ahead of country (that’s the way Republicans would spin it) and a group of politicians who are willing to kill the career of a highly experienced jurist with decades of work on and off the bench, a Democratic filibuster would provide Majority Leader McConnell with the perfect excuse to change the rules of the Senate to his party’s benefit. What would now take 60 votes to proceed could be lowered to a simple majority, which virtually guarantees that Republicans can jam any future Supreme Court nominee through the Senate without having to worry about those pesky Democrats holding up the process. Any leverage that the Democrats have now would evaporate into thin air; after all, who cares what Democrats think if they don’t have the power to act on those thoughts?
This isn’t a hypothetical scenario. Sen. McConnell has all but overtly blurted out that he would change the rules of the Senate to put Gorsuch on the high court. Speaking to the Washington Examiner last month, McConnell declared flatly that “[c]loture could be invoked, it could not be invoked. All I can tell you is Judge Gorsuch is going to be confirmed.” That’s McConnell’s way of saying that he would be prepared to nuke the filibuster if Democrats’ intransigence become too much for him to handle.
Are Democrats willing go down that road and wager that McConnell is merely bluffing? Is blocking Gorsuch’s confirmation to the Supreme Court so important to liberals and moderate Democrats across the country—and to the ideological balance of the court—that a filibuster needs to be levied? If McConnell is prepared to eliminate the filibuster and Gorsuch is confirmed anyway, would Democrats be kicking themselves for the rest of the year and wondering whether they could have done things differently?
Senate Democrats are in a “damned if you do, damned if you don’t” situation. They can either stay together, dare the Republicans to alter the rules in order to push Gorsuch’s confirmation, and potentially see whatever legislative power that they have on presidential appointments be extinguished for as long as they are in the minority. Or they could ask Gorsuch the tough questions during his hearings in an attempt to trip him up, knowing full-well that the calm, cool, and collected judge will probably handle them with ease.
Either way, Gorsuch will be the next associate justice of the Supreme Court. Democrats are going to lose this battle whatever they attempt to do. The choice before them is whether they are willing to lose their filibuster power as well.