Friendly Reminder: If Democrats Float Another Deal On Gorsuch And The Filibuster. Don't Take It.

Posted: Apr 04, 2017 7:30 AM

Guy had post on this last month, but now that Gorsuch has passed the Senate Judiciary Committee vote—it’s conceivable that some senators might want to strike a deal to avoid the nuclear option. Yes, Democrats have the 41 required senators to block Gorsuch through that procedural hurdle. But cloture motion aside, there are a multitude of senators, Democratic and Republican, who are adherents to Senate protocol and might not want to blow that up. So, what was the deal that as initially floated last month? Oh, it was just Democrats agreeing to confirm Gorsuch, while making sure the GOP can’t go nuclear in the case of a second vacancy; a clear signal that they plan to go full character assassination on whoever President Trump nominates next. It’s a guaranteed firewall to protect the balance of the Court by insisting on 60-votes for the next possible nominee. It’s a bad deal—and the GOP should throw it in the trash. The Wall Street Journal also agreed:

If Mr. Schumer insists on a 60-vote standard, Republicans should force him to declare a filibuster. If he does, they should then proceed to change Senate rules and confirm Mr. Gorsuch with 52 Republicans and any Democrats who decide for the sake of re-election not to take Mr. Schumer’s dictation.

Democrat Harry Reid set this precedent in 2013 when he changed Senate rules to jam Barack Obama’s nominees onto the appellate courts. Last October Hillary Clinton running mate Tim Kaine vowed that Senate Democrats would do the same for the Supreme Court if Republicans opposed a Clinton nominee: We “will change the Senate rules to uphold the law.”

The Supreme Court was a central issue in 2016, and Republicans won the Senate and the White House. If Mr. Schumer insists on a filibuster, then Republicans have an obligation to respect their voters and confirm Judge Gorsuch anyway.

Right now, it may not even be plausible for Democrats to offer anything since they already have the votes to block Gorsuch. The progressive base would go insane if they found that Democrats decided to scuttle the ship at his point. For Republicans, the base would go insane for agreeing to a deal that offered them nothing of political value. We want that second vacancy to occur under the Republican president with a Republican Congress. Are we seriously going to cannibalize our chance to alter the Court over a fight that deals with a conservative jurist replacing a conservative vacancy? No. Moreover, while Senate Democrats whine about Merrick Garland, Obama’s initial pick to fill the vacancy, Senate Republicans were adhering to precedent through the Biden rule. Second, Democrats need to let Garland go. He’s gone—poof! Into the wind, and he’s never coming back. With Gorsuch, scores of legal scholars and fellow colleagues from across the political spectrum have endorsed his nomination. The American Bar Association gave the man its highest rating. Obama’s former solicitor general supports Gorsuch for the Court. There is no real reason other than political spite to oppose his nomination. 

If Democrats float a similar deal, or any deal for that matter, that seeks to save the filibuster from the nuclear option, Senate Republicans should reject it. The Rubicon has been crossed.