A couple of months ago, when the Gorsuch nomination was announced, I argued that, intentionally or not, Trump and the GOP had put Democrats in a difficult position. They could either solidly oppose a plainly qualified nominee, and risk irritating voters in key red states they need to win in 2018 — or they could respond in a less-partisan manner, see him confirmed by an Alito-like margin, and risk the wrath of a base justifiably enraged by the success of the GOP’s stonewall of the equally-qualified Merrick Garland.
The Democrats have plainly decided on the more confrontational option. But I’m not convinced this is simply because they are more scared of their base than they are interested in positioning for 2018. Rather, I think the calculation is something like the following:
- Gorsuch is going to be confirmed no matter what, because if they filibuster him then the GOP will eliminate the filibuster. There is no way the GOP will risk losing the Senate in 2018 after not having filled the seat, and they won’t consider backing down from an obviously qualified, uncorrupt nominee with an excellent judicial temperament.
- Therefore, the nomination is not going to be an issue in 2018 no matter what, so they don’t need to worry about the politics. Rather, the issue is whether the filibuster survives. And on the merits, there’s no reason to think the filibuster helps the Democrats more than the GOP. So let it die.
- Finally, the GOP can only put Democrats in a difficult position if they are in a position to capitalize on that difficulty. But that is decreasingly the case. The failure of the AHCA, and its wild unpopularity before it failed, has exposed the weakness of the GOP’s political position.
None of that means that filibustering Gorsuch is going to actually help the Democrats in any particular way. But failing to sustain a filibuster might well hurt them, and fighting tooth and nail looks like it has less downside than it might have, so here we are.