Analysis: Are Democrats Seriously Going to Attempt a Gorsuch Filibuster?

Posted: Mar 27, 2017 3:30 PM

The left-wing element of the Senate Democratic caucus is on board, naturally, but so are some 'middle of the pack' Democrats -- as well as at least a number of alleged "moderates." Sen. Chuck Schumer keeps insisting on a "60 vote standard" to confirm Gorsuch, which requires quite a bit of dissembling, including turning a blind eye to the fact that two sitting justices (Thomas and Alito) were confirmed with fewer than 60 votes.  Plus, the only reason neither of them received an overwhelming rubber stamp is that Democrats have been establishing themselves as the hyper-partisan aggressors in these escalating fights over the past three decades. As I wrote last week, they believe that their party should be allowed to operate under a different set of rules than the limitations they attempt to impose upon their opponents.  Republicans must never play along with this arrangement again.  Cortney reported earlier that Sen. Chris Coons echoed Schumer's "60 votes" line in a confounding appearance on MSNBC this morning:

So what's his position? Does he even know? Let's recall that Coons was among the Senators who went along with Harry Reid's nuclear option on judicial filibusters in 2013, establishing the Reid Rule as the prevailing precedent. Once that tactic came back to burn the Democrats under President Trump, Coons pronounced himself regretful of his previous actions.  This about-face was reminiscent of when then-Senator Obama filibustered Justice Alito, only to come to publicly "regret" that decision when he wanted his own appointments to the federal bench to sail through. In these battles, Democrats frequently do one thing in pursuit of their immediate ideological interests, then reverse pursuit of their new immediate ideological interests. It's transparent, ham-fisted, and predictable. Coons' allege pangs of remorse evidently aren't powerful enough to resist following Schumer toward yet another escalation on this front, the framing of which requires parsing so misleading that the Washington Post fact-checker has called it out on multiple occasions.  Here's Dan McLaughlin skewering Schumer's tendentious fiction in additional detail: 

Senate Minority Leader Chuck Schumer made the rounds this weekend to push his theory that Neil Gorsuch needs 60 votes to be confirmed by the Senate. This is a novel theory without a basis in Senate history, which even the Washington Post gave “two Pinocchios”. It’s true, as a matter of Senate rules, that Schumer needs only 41 votes to filibuster Gorsuch. It’s equally true that if he does, Mitch McConnell needs only 51 votes to change the rules. So, as a matter of raw political power, Schumer is only half right. But as a matter of Senate history and tradition, he’s not even halfway to half right. In fact, six nominees to be Supreme Court Justices, including two members of the current Court, have been confirmed with less than 60% of the vote.

Gorsuch deserves an "up or down" vote, Coons asserts. But the up-or-down threshold should be 60 votes. In other words, a filibuster-prone supermajority, not an up-or-down vote. Meanwhile, Sen. Bernie Sanders is laughably claiming that requiring a 60-vote invocation of cloture to advance a nomination doesn't count a filibuster.  Sorry, but if 41 Senate Democrats bind together to deny cloture, then yes; it's a filibuster. Republicans appear ready to apply the Reid Rule if Democrats try to placate their radical "resist" base by obstructing Gorsuch -- on whom they failed (quite spectacularly, I might add) to lay a glove during his confirmation hearings. Some of the more moderate members of the Senate GOP conference who might be inclined to waver on this point seem prepared to respond in kind if Democrats provoke them by playing hardball. Two of the only three remaining members of 2005's since-gutted "Gang of 14" compromise on judicial filibusters (staving off a Republican-detonated nuclear option in the face of unprecedented Democratic obstructionism of Bush nominees) have indicated that a filibuster of Gorsuch won't fly:

Arizona senator John McCain hinted Thursday afternoon that he's ready to confirm Judge Neil Gorsuch with a simple majority if Senate Democrats take the unprecedented step of filibustering a Supreme Court nominee. Asked what Republicans should do if 41 or more Democrats try to block Gorsuch, McCain told THE WEEKLY STANDARD: "I think we'll address it when it happens. None of us want to do it, but we're going to confirm Gorsuch." Earlier Thursday, Lindsey Graham of South Carolina also signaled that he's willing to confirm Neil Gorsuch with a simple majority. "Whatever it takes to get him on the court, I will do," Graham said when asked on the Mike Gallagher radio show about eliminating the 60-vote threshold for Supreme Court nominees, a rules change sometimes known as the "nuclear option."

And Utah's Orrin Hatch, who has been one of the reluctant GOP voices on this tactic, is out with a Wall Street Journal op/ed blasting Senate Judiciary Committee Democrats for their antics last week. This does not sound like a man who's particularly inclined to abide an attempted filibuster:

In stark contrast was the astonishing treatment Judge Gorsuch received from many of my Democratic colleagues. Whatever their motivation—be it the outcome of President Obama’s lame-duck nomination during last year’s election, an unwillingness to accept the November results, or the desire for judges to push a liberal political agenda—they have apparently decided to wage a desperate, scorched-earth campaign to derail this nomination, no matter the damage they inflict along the way. We are now watching the confirmation process through the funhouse mirror...We should call these phony attacks what they are: intentional attempts to mischaracterize Judge Gorsuch’s record. Any fair analysis can lead only to the conclusion that he reaches the result commanded by the best reading of the law, free from any political agenda.

As Judge Gorsuch rightfully put it, quoting Justice Scalia: “If you’re going to be a good and faithful judge, you have to resign yourself to the fact that you’re not always going to like the conclusions you reach. If you like them all the time, you’re probably doing something wrong.” In Judge Gorsuch, the country has a Supreme Court nominee as fine as I could ever imagine. But instead of the best traditions of the advice-and-consent process, which many of us have tried to live up to, what is he treated to? Hypocritical attacks on the very judicial independence that Democrats claim to prize; misleading characterizations of his record; and now, a promise to filibuster his nomination...This madness needs to stop. End the dishonest attacks and scorched-earth tactics. Instead, we should have a debate worthy of “the world’s greatest deliberative body,” and confirm this outstanding nominee.

As we've reasoned previously, Senate Democrats would be foolish to play the filibuster card in this fight.  Perhaps that's why certain members in their ranks aren't as excited about this plan as some of their colleagues, including a handful of moderates and liberals alike.  Not only have Democrats already set the precedent to overcome this form of obstruction, there is no reasonable tactical advantage to triggering this showdown right now.  Gorsuch succeeding Scalia would simply replace one conservative originalist with another.  The next vacancy, however, could tilt the balance of the Court.  Democrats would be wiser to keep their powder dry for that fight, but their deranged base seems unlikely afford them that strategic flexibility.  Based on fresh steps taken today, it looks like a quixotic blockade may end up as their preferred route after all.

In either case, Senate Republicans must be ready to do what must be done, whether through the Reid Rule or by other means.  The last two Democratic presidents each got two non-filibustered SCOTUS picks confirmed.  Allowing the Democrats to deny that same deference to Trump would be unacceptable, especially since they're the ones who (a) blew up the filibuster on judicial appointments in order to allow Obama to stack key lower courts, and (b) clearly signaled that they were ready to further expand the Reid Rule if Hillary had won.  I'll leave you with the editors of the Los Angeles Times throwing a tantrum over Democrats being served a taste of their own medicine, via enforcement of the Biden and Schumer standard, on the lame-duck, dead-end Garland nomination:

"Stolen"? Nope.  The question now is whether Schumer gets 41 members to mount a filibuster.  If I had to bet, I'd say he'll fall just short this time, and perhaps intentionally so.  That way, he could tell party loyalists that they made an effort, then start laying the groundwork for a slightly more viable scorched-earth obstructionist approach to Trump's next selection.

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