It now appears increasingly likely that 41 or more Democratic senators will take the unprecedented step this week of filibustering a qualified Supreme Court nominee. As William Kristol wrote in the following WEEKLY STANDARD editorial, Senate Republicans shouldn’t hesitate to defend the Constitution and confirm Judge Neil Gorsuch with a simple majority:
Senate Democratic leader Chuck Schumer isn’t a happy warrior. He loves the spotlight, but everyone’s paying more attention to his colleagues Elizabeth Warren and Bernie Sanders. He hoped to be majority leader, but Republicans surprised most observers by holding the Senate on Election Day. He fulminated throughout 2016 against the decision by Republicans to deny President Barack Obama Supreme Court nominee Merrick Garland a hearing, let alone a vote, but his GOP counterpart, Mitch McConnell, showed how it’s done by succeeding in holding his caucus together behind that strategy.
So on January 3 of this year Schumer talked tough. “We are not going to settle on a Supreme Court nominee,” he told MSNBC’s Rachel Maddow. “If they don’t appoint someone who’s really good, we’re going to oppose him tooth and nail.”
As Schumer made clear moments later, the only nominee to fill the late Justice Antonin Scalia’s seat whom Democrats would consider “really good” would be a nominee who doesn’t share the judicial philosophy of Antonin Scalia. And when the MSNBC host suggested that “no [Trump] nominee would be legitimate” because the appointment was rightfully Obama’s, Schumer agreed. “It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support. So you’re right.” Asked if he would do his best to keep the Scalia seat open indefinitely, Schumer replied: “Absolutely.”
So Chuck Schumer is pretty well committed to trying to marshal his members to an effort that’s never succeeded. Over the years many Supreme Court nominees have failed to make it out of the Senate (with or without an up-or-down vote being held). The Senate minority party has used the filibuster to kill countless pieces of legislation. But the Senate minority has never used the filibuster to defeat a qualified and ethical Supreme Court nominee.
Chuck Schumer is a smart and savvy politician. He surely knows that if 41 Democrats band together to deny an up-or-down vote on the confirmation of a nominee as well-respected as Judge Neil Gorsuch, Republicans will most likely eliminate the 60-vote hurdle on Supreme Court nominees—just as Democrats did in 2013 for all other judicial and executive branch nominees. If Democrats want to preserve the possibility of filibustering Supreme Court nominees, they could have a better chance of success in the future against a weaker nominee, supported perhaps by a slimmer GOP Senate majority and an administration nearer the end of its term.
But Democrats may very well blow up their chance of filibustering a future nominee. Democrats are still smarting over the Senate Republican majority’s decision to hold Scalia’s seat open for the winner of the 2016 presidential election. Liberal activists want payback and are threatening to primary any Democrat who votes to allow an up-or-down vote on Gorsuch’s nomination—even if he or she then votes against Gorsuch.
We trust that if Democrats choose to filibuster, Republicans will be smart enough and tough enough to confirm Gorsuch with a simple majority vote. But all Chuck Schumer needs to turn an expected defeat into a shocking victory is to recruit three supporters among the 52 Senate Republicans. To that end, Schumer has suggested that the Republicans who would let 41 Democrats block Trump’s nominee are the “Republicans who believe in the institution of the Senate.”
This is nonsense: Any Republican who would let 41 Democrats keep the Scalia seat empty would not be protecting the institution of the Senate. He would simply be embracing the principle that liberal activists appointed by Democrats need 51 votes for confirmation but constitutionalists appointed by Republicans need 60 votes. For if Democrats had won the White House and the Senate in 2016, there was zero doubt that they would have steamrolled any GOP Supreme Court filibuster. There is zero doubt they will do it in the future even if Republicans forbear. We know this because it’s what Harry Reid told us Democrats would do. “They mess with the Supreme Court, [the filibuster will] be changed just like that,” Reid said, snapping his fingers, according to a report published at Talking Points Memo in October when a Hillary Clinton victory and a Hillary Clinton nominee seemed likely.
There is no reason to believe, if Republican senators agree to requiring 60 votes for this Supreme Court nominee, that Democrats would reciprocate when the tables are turned. An instructive lesson is how the filibuster for lower-court nominees was eliminated. After Democrats engaged in an unprecedented level of obstruction of George W. Bush’s judicial nominees, Republicans considered curtailing the filibuster. But in 2005 a bipartisan “Gang of 14” struck a deal to keep it. Just eight years later, Democrats eliminated it and proceeded to stack the second-most important court in the country, the U.S. Court of Appeals for the D.C. Circuit, with their favorites.
As the fight to confirm Gorsuch proceeds, Republicans and other defenders of the Constitution will be entirely correct to argue that a filibuster of Gorsuch would be unprecedented. Republicans will also be correct to point out the ways in which Democratic treatment of Gorsuch differs from the GOP majority’s refusal to consider Obama nominee Merrick Garland during a presidential election year. (Chuck Schumer and Joe Biden both said during previous Republican administrations that Supreme Court nominees should not be confirmed during a presidential election campaign.)
Republican senators have taken an oath to support and defend the Constitution, and they have an obligation to confirm Supreme Court justices who would do the same. If they fail to exercise their constitutional authority to confirm Gorsuch out of deference to a Senate rule that has never been used to block a qualified Supreme Court nominee—a rule that we know Democrats would eliminate if the tables were turned—they will make Chuck Schumer happier. But they will have failed the country and the Constitution.
