After Missouri liberal Claire McCaskill used a Friday afternoon news dump to announce her decision to join the filibuster against Neil Gorsuch -- whom she gratuitously smeared for his alleged "stunning lack of humanity" -- the likelihood of Senate Democrats mustering the requisite 41 votes for their threatened blockade shot up. As we have analyzed on several occasions, employing this tactic would be the Democrats' latest abuse in a series of partisan escalations in the upper chamber's confirmation battles, dating back decades. Never before in United States history has a Supreme Court selection faced a partisan filibuster against his or her nomination. This filibuster would lack both precedent (more on this point shortly) and any substantive justification whatsoever. I have yet to see any official whip counts of GOP Senators' preparedness to detonate the nuclear Reid Rule if their counterparts sustain a filibuster against Gorsuch, but informal head counts based on public comments suggest that Republicans are ready to 'go there' if Democrats' mindless obstruction forces their hand. On Meet the Press Sunday morning, Senate Majority Leader Mitch McConnell calmly explained to his colleagues across the aisle that Judge Gorsuch will be confirmed this week. Precisely how that goes down, he said, is up to Chuck Schumer's caucus -- only two of whom (update: three) have announced their support for a nominee whose qualifications aren't even remotely in dispute:
On Fox News Sunday, McConnell echoed similar themes: "Judge Gorsuch deserves to be confirmed. [He was described as] unanimously well-qualified by the American Bar Association. My counterpart Senator Schumer once called it the ‘gold standard.’ [His decisions were] in the majority 99 percent of the time, 97 percent of his rulings were unanimous, only reversed one time in a case in which he participated by the Supreme Court...that’s why he will ultimately be confirmed. Exactly how that happens will be up to our Democratic colleagues.” It looks as though those colleagues are intent upon a 'nuclear' confrontation in which Republicans will turn Democrats' 2013 rule-changing power grab against them. Hypocrite extraordinaire Chuck Schumer again raised his imaginary '60 vote' threshold in running through his tortured talking points against Gorsuch. He also laughably tried to paint President Trump's pick as not "mainstream," despite the telling 99 percent statistic cited by McConnell, and even though Gorsuch's was introduced by two Democrats at his hearings. Without a principled leg to stand on -- especially because Democrats have spent years sawing off their own political limbs in pursuit of short-term ideological gains -- Schumer declared that Gorsuch would likely fall short of 60 Senate votes, amusingly demanding that Trump withdraw his nomination. That's not going to happen.
Because the Left is so comprehensively bereft of any compelling arguments either against Gorsuch specifically or on precedent and process, they're reduced to grasping at straws and clinging to false equivalencies. Some have disputed Republicans' entirely accurate statement that there has never been a partisan filibuster sustained against a Supreme Court nominee in the history of the Senate. When I was debating with leftists on Twitter about this confirmation battle, I heard endlessly about Merrick Garland (whom Republicans chose not to consider under the Biden and Schumer Standard and other precedents, a choice made easier by Democrats' 2013 nuclear option, which cried out for justified retaliation), as well as various permutations on this response:
Omfg conservatives filibustered Abe Fortas in 1968. Also I guess it's ok for GOP to retaliate but not Dems? You literally make no sense. https://t.co/TJfbxF6GAE
— Sean Kent (@seankent) March 31, 2017
There was a Supreme Court filibuster in 1968, the only one in American history (thus far). It was launched against a sitting justice who'd been nominated for elevation to Chief Justice, and was sustained by an almost evenly-split group of Democrats (19) and Republicans (24). As Dan McLaughlin explained in a piece taking apart Schumer's parade of distortions, an ethical scandal was central to that bipartisan filibuster:
Only once in Senate history, in 1968, was a Supreme Court nomination thwarted by less than a majority of the Senate, when the nomination of Justice Abe Fortas to Chief Justice (and the concurrent nomination of Homer Thornberry to replace Fortas as Associate Justice) was put to a cloture vote, and got 45?yes” votes and 43 “no” votes. Notably, Fortas and Thornberry didn’t get 50 votes, and as LBJ’s top domestic-policy aide, Joseph Califano, has recounted, this was a face-saving vote for Fortas and Lyndon Johnson after damaging new information about Fortas’ ethical troubles emerged...Fortas’ critics were vindicated when his compounding ethical issues led to his resignation from the Court seven months later.
In other words, totally non-analogous to the current scenario. If Democrats continue their pattern as the sharp-elbowed aggressors in these fights later on this week, it is simply a fact that they would be engaged in another unprecedented act. The Senate Judiciary Committee, whose Democratic members failed miserably to lay a finger on Gorsuch over hours of grilling, is voting on his nomination this morning. Assuming a party-line vote (which would be something of a disgrace unto itself), the real action comes towards the end of the week.