I see no other option for Senate D’s but to filibuster Gorsuch

April 4th, 2017 at 9:28 am

In the course of noodling over whether the Senate D’s should filibuster the Gorsuch nomination, I just can’t see why not.

I don’t say that lightly. While I’ve been a critical observer of filibuster abuse for a while (so I can’t say I’d miss it), I worry about a less deliberative Senate. But given how severely trust, compromise, and thoughtfulness have devolved, the deliberation train left the station long ago, with Judge Merrick Garland tied to the tracks. At this point, I see no clear logic that points D’s toward cooperation.

A few facts/assumptions to frame the discussion. For what follows to make sense, these must be at least broadly correct.

1) D’s believe Judge Gorsuch is too conservative and threatens to overturn established case law in areas about which they care deeply, like abortion and worker rights. I think they’re right.

2) D’s have the votes to filibuster and thus block the nomination.

3) Senate R’s are telling the truth when say they that if D’s filibuster Gorsuch’s nomination, even though they’d rather not, they will “go nuclear” (change the rules so that only a majority vote is required). I believe them.

Based on those assumptions, let’s see what paths lead D’s to the logic of filibuster vs. cooperation.

The goal of the D’s is to have the R’s nominate a justice where #1 one does not hold, i.e., a justice who they might not consider too conservative. In that case, they have two options: filibuster or cooperate with conditions.

They can filibuster Gorsuch et al until R’s put up no Morsuch candidates. But based on #3, that won’t work. If they filibuster, R’s go nuclear and Gorsuch is on the court.

So they should cooperate, right, and give the R’s the votes they need to get to 60? No, because that too lands them with Gorsuch.

What if they decide a second-best option is to cooperate with conditions? Give the R’s Gorsuch (don’t filibuster) based on a deal that the next time there’s a Supreme Court opening—which might not be too far away—the R’s will put up a less conservative candidate. This is the tactic the WaPo editorial board suggests today: “…postponing the discussion over abolishing the filibuster until Mr. Trump’s next nomination, if any, would put Democrats in a stronger position and at least might pressure the president to select a more reasonable nominee next time than he otherwise might.”

This strikes me as a highly risky strategy. First, if the R’s are still in the majority next time there’s an opening, the D’s would have to trust Trump and the R’s to meet the conditions of this second-best deal. There’s no good reason to do so. Once R’s assert, as they have, that they’ll go nuclear if they don’t get their way, the D’s would be reckless and irresponsible not to believe them, either this time or next time.

Second, what if the Senate majority flips by the time of next opening? Then D’s have given away a too conservative seat to Gorsuch, but, as part of the deal, will—assuming they stick to the deal—have to put up a moderate-at-best nominee with whom R’s are OK. That’s a bad deal versus trying to neutralize Gorsuch with a liberal counterpart, passed with a simple D majority.

So the D’s best strategy is not to cooperate, i.e., to filibuster.

The problem is, once R’s invoke #3, there are no reliable benefits to the D’s from cooperating. Even if they could trust the R’s to put up a more moderate nominee next time, unless they’re convinced they’ll never be back in the majority, they end up with a too-conservative court relative to filibustering and invoking the nuclear option that they will then take advantage of if their time comes. It may sound counterintuitive, but once Senate leader McConnell brought out the nuke, a move that showed without doubt that R’s will do whatever it takes to move the court to the right, I see no obvious benefit to D’s of not forcing him to use it.

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15 comments in reply to "I see no other option for Senate D’s but to filibuster Gorsuch"

  1. Tcatman says:

    I agree with your conclusion of the choices given the game as currently drawn. We have suffered years and year of mini dramas over every federal court appointment. Some individual personalities, who carry their sides flag proudly, generate a political fight and the fight undermines the courts authority. Perhaps, we should change the game.

    We need to remove the high stakes value of being one of nine justices where every highly charged issue is decided 5 to 4. Since there is no shortage of highly skilled judges and this is not a search for THE ONE…. we should bargain to increase the size of the court.

    We should remove the high stakes value of when an appointment is made to the courts. Waiting for sudden death or retirement or impeachment for infirmity is silly. We should bargain for one appointment a year and term limit the appointment. Such a court would reflect the voting public’s sentiment.through the executive and legislative branch. The idea of a lifetime appointment raises the stakes as well and serves no purpose that a 17 year term (4 presidents plus one) would not as well.

    We would have to give up the notion that we are supposed to be sussing out superstars with our current process who, by dint of absolute brilliance, will solve our problems (and keep the other side from starting a revolution). If we must play high stakes games…. let’s invent a game that serves the public by adding chips to the game and devalue the role of the JUDICIAL ONE…

  2. Nick Batzdorf says:

    The Democrats could also simply abstain from voting. Goresuch is going to be in anyway, so why not hang the $@&! around the Repiblicans’ necks. That makes a better statement than filibustering anyway.

    • Anonne says:

      No, it doesn’t. If they are going to nuke the filibuster, make them do it and cry about it in the future when it comes back to haunt them. If Neil Gorsuch is the hill the Republicans in the Senate want to die on, so be it. This is a long game, and they have been destroying the norms and traditions of the Senate for years. If they think that they will never be in the minority again, let them do this and pay the price for it later.

    • TZ says:

      Nonsense. The filibuster rule is not a rule anymore. If the Dems use it, the Reps will delete it. Defeats the purpose of the rule, so lets quit pretending that judges and politics don’t mix. That is BS and it always have been.

  3. Mike Bal says:

    Isn’t this the Game Theory of Chicken, where the Republicans have thrown their steering wheel out the window?

  4. Phil Freihofner says:

    Armed robber to victim: “Don’t make me shoot you!”

    Republicans, the party of personal responsibility claim “they made us do this”?

    A reminder: many judicial appointees for lower courts were suggested by Republicans in their states or jurisdictions, yet McConnell still blocked them during Obama’s term. Even so, when filibuster rules were changed, after several years of this irresponsible and damaging impasse, Supreme Court filibustering was deemed too important a check and balance to touch by Democrats.

  5. Bob Palmer says:

    Agree with Bernstein’s analysis. Here is another aspect that supports it.

    The Dems humiliated themselves in the last campaign season. The public was already suspicious of where the national party’s sentiments lay, and the campaign unfortunately did not address that. To begin to rebuild connection with the rest of the nation, the Dems badly need to take this highly visible stand on something where the moral truth is clearly on their side. The “frozen trucker” tale and the right of employers to control their employees sexual options are clear wins. Dems need to show solidarity and the gumption to fight. Yes, they will lose the battle when McConnell does away with the filibuster rule. In losing though Dems will be perceived as standing for something other than trade deals and Wall Street. The “frozen trucker” will come in real handy in red counties like this one in the midterms.

    • AngloSaxon says:

      Any time you run a “national campaign” in the general, it will depend on how the party nominee can whip up the base and you don’t nominate a Clinton.

      Your “trade deals” comment is DOA. Trade deals are popular like they screwed over Mexico with NAFTA and South America with CAFTA by forcing those areas to reduce barriers to trade far more than the US did.

  6. AngloSaxon says:

    Of course they will filibuster. They want the Republicans to scrap it.

  7. Tom Cantlon says:

    I have to disagree. We did get robbed of Garland. Dems should vote against Gorsuch. I’m very much in favor of Dems doing radical action to make themselves the party of the people (something they’ve lost for being wishy-washy). But picking battles is important. What’s to be gained here? GOP go nuclear? Stop Gorsuch and they put in someone much worse by going nuclear? Much more strategic battles to wage, like economic populism.

  8. Jennie Chien says:

    Agree with this analysis. Dem’s have nothing more to lose because Repubs have shown themselves to be faithless to American democracy. Thinking the Repubs would “give back” in a gentleman’s agreement is sheer folly.

    Merrick Garland deserved a vote, not the limbo he was thrown into. The nuclear option, once used, cannot be withdrawn, so Dem’s playing a long game have a better chance to get their candidates confirmed once they are back in the majority.

  9. Sagrimore says:

    Whether or not the Democrats filibuster, the result will be the same — Republicans will have won (again) by doing whatever they must to win.

    The question is, will Democrats then meekly return to the status quo? Will they continue being only party to practice comity? Will they continue being the only party willing to compromise? Will they continue being the only party that respects rules, traditions and the process? Will they continue being the only party willing to look forward instead of backward? Will they continue being the lovable losers?

    Democrats need to take a page from Newt Gingrich’s 1996 memo with the Goebbels-esque title, “Language: A Key Mechanism of Control”. They must “define” their “opponents” using “powerful words that can create a clear and easily understood contrast”.

    So once Gorsuch is seated, Democrats MUST do everything they can to delegitimize Gorsuch as a Supreme Court justice and delegitimize the Republican tactics that put him on the Court. Democrats must never refer to him by name. They should simply refer to him as “The Stolen Seat”. When a SCOTUS ruling is handed down, Democrats should describe it as “a four to four tie with The Stolen Seat casting the deciding vote for Republicans.” ANY 5-4 ruling after Gorsuch should be referred to as “illegitimate because it was made before The Stolen Seat”.

    Democrats finally need to recognize that Republicans ALWAYS bring a gun to a gun fight and they’re ALWAYS ready to use the gun to achieve their goals. Republicans don’t bring a knife to the gun fight and they certainly don’t bring a feather duster, as Democrats seem too often to do.

    And Democrats need to recognize that Republicans continue fighting, and fight even harder, after a loss.

  10. Fred Donaldson says:

    The problem is that Dems and Dose vote in the Senate (and house) based on what the party says and what donors want. A simple change in this case – and some others of importance – would be to require a secret ballot. Suddenly, without scrutiny, elected officials would be free to vote for what they believed best, and the big money, etc., could not retaliate. Big issues deserve secret votes – just like the right we have to elect these folks.

    • TZ says:

      Nonsense! Secret ballots will just make it easier to avoid blow-back from unpopular voting records. See what is happening at town halls over Trumpcare. This is one of the dumbest ideas I have ever heard.

  11. Tom_in_MN says:

    Getting rid of the filibuster will help Dem’s in the long run. The stuff the Dem’s will pass with a simple majority people will find they like (OCare anyone?) and don’t want repealed, while GOP stuff, not so much. Hard to win popularity contests when you only do stuff for the 1%.