Sen. Jeff Flake of Arizona is what passes for a moderate Republican these days. Few senators who weren’t running for president themselves were as outspoken as Flake about the shortcomings of Donald Trump. Yet, he seems well pleased with Trump’s nomination of Neil Gorsuch to serve on the Supreme Court and he decided to write an editorial explaining why he supports Gorsuch and also why he thinks the Democrats should refrain from filibustering him. You might be interested in reading his reasoning or you might not, but I want you to focus on his summation:
Senate Democrats’ decision to filibuster Judge Gorsuch is a sad commentary on this institution and reflects the breakdown in comity that once characterized this body. I hope they change their mind. We need this good man on the court.
There’s a simple acknowledgment that if the Democrats do not change their mind then Gorsuch will not be on the Court. There’s no threat that the filibuster will be removed. There’s not any mention that this might even be a possibility.
John Yoo and Saikrishna “Sai” Bangalore Prakash also wrote an editorial on Gorsuch’s nomination and they also failed to mention that the filibuster might be taken away from the Democrats. Their reasoning is contentious and they don’t even try to build a supporting case for it. They suggest that Minority Leader Chuck Schumer’s announcement that the Democrats will filibuster the nomination “signals the success, not the failure, of Judge Neil Gorsuch’s Supreme Court nomination” and “the sense that Gorsuch is going to be confirmed is nearly universal, making these hearings as exciting as a Soviet show trial.”
The premise here goes unstated, but their argument is that at least eight Democrats will vote to end the filibuster. They don’t try to identify a single one of those eight Democrats, though, or to explain why Schumer would take the position he has if he didn’t think his caucus would hold behind him.
This is all fairly strange, because the question that should be asked is if the Republicans will follow through on their threats to use the so-called “nuclear option” to eliminate the filibuster if the Democrats actually do hold firm. In case you don’t know the basics of how that would work, the Republicans would need a majority to change the rules, and that means that they’d have to convince at least 50 of their 52 member caucus to vote to kill the filibuster. If three members are too traditionalist to make the move, then the filibuster would stay and Gorsuch’s nomination would be defeated.
Right now, those who are talking about the nuclear option are talking pretty tough.
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.”
As I mentioned last week, the Democrats don’t need a tool that breaks the first time the try to use it, so losing the filibuster isn’t an actual concern if it’s never going to be able to block an objectionable Justice anyway. But they’d like to actually block this nominee so they should go out of their way to avoid helping make the Republicans’ case for eliminating the filibuster.
And what’s their case?
Because he’s so unobjectionable, objecting to [Gorsuch] reeks of obstruction for the sake of obstruction. If Gorsuch can’t get confirmed, no one can get confirmed. Which means any Republican who refuses to nuke the filibuster would be effectively deciding that Scalia’s seat will remain vacant until 2019 at least.
This is why I said the following:
But, as I said, beating Gorsuch isn’t the point, just as beating Robert Bork wasn’t the point. The point is to get a more moderate Justice, not to just keep filibustering every nominee that Trump sends down Pennsylvania Avenue. They need to be very clear that they’ll confirm someone, eventually, provided that they have a big say in who that someone is.
In other words, they can’t hold their caucus together for four years on a plan to leave a seat indefinitely vacant on the Supreme Court. They’re going to have to concede Trump’s right and his obligation to fill the seat. But they do have the leverage to insist that they are consulted on who that judge will be and that the judge is widely acceptable within their caucus. The Democrats’ strategy should be aimed at protecting the American people and particularly their base of supporters, and they have to use all the power they have to do it. That means they filibuster Gorsuch and they stand united. But it also means that they go to Trump and say that they’re not going to leave the seat vacant until 2019 provided that they all come to an agreement on a more acceptable candidate for the position.
The Republicans will keep saying that if Gorsuch is not acceptable then no one will be acceptable, and that this justifies changing the rules. The Democrats have to cut that avenue of argument off at the pass, and if they’re sincere about it they may be able to convince three Republican senators not to blow up the filibuster rule.
Ultimately, a position of intransigent blocking of any and all nominees isn’t sustainable and it will force the GOP to change the rules. The Democrats should remember that getting Justice Kennedy instead of Justice Bork was a victory worth winning. And the Republicans should remember what they did to Merrick Garland and that they’ll want the filibuster one day when a Democrat is president again.
