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The Gorsuch Filibuster

A couple of months ago, when the Gorsuch nomination was announced, I argued [1] 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 [2], 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:

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.

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27 Comments To "The Gorsuch Filibuster"

#1 Comment By Andy Lowry On April 5, 2017 @ 4:17 pm

Given that the filibuster is a dead letter, I think the Dems are firing up their base, which makes sense to do here.

The party needs good midterms turnout, and reinforcing the “spineless Dems roll over (again)” stereotype doesn’t help that goal.

#2 Comment By balconesfault On April 5, 2017 @ 4:24 pm

The Gorsuch filibuster is all about McConnell’s shabby treatment of an equally qualified candidate in Merrick Garland.

Had Garland been confirmed, and Gorsuch were nominated in the future by Trump to replace another deceased/retired justice, I believe there is no way Schumer could have pulled together enough Dems to sustain a filibuster (and in fact, I doubt he would have even tried).

As for the filibuster … if it is clear that McConnell would eliminate it as soon as it is invoked, better to just get that charade off the table sooner rather than later, right?

#3 Comment By Ted W On April 5, 2017 @ 5:50 pm

Exactly, the filibuster has not benefited the Democrats for some time. And looking forward it is the Republicans, with a shrinking coalition (still true, regardless of Trump), that have the most to lose from losing the filibuster.

By filibustering Gorsuch we risk nothing politically, the Republicans do our dirty work for us. We lose the filibuster (again benefiting Democrats in the mid-term) and get to beat up on Republicans as radicals (in the short-term).

I was initially very anti-filibuster, then I realized I was mainly just marrying tradition and not thinking strategically.

#4 Comment By Richard M On April 5, 2017 @ 5:59 pm

The way in which it hurts Democrats is if another SCOTUS seat opens up in the next three years (I say three years since the balance of seats up for election in 2018 overwhelmingly favor GOP retention of the Senate) – and with two octogenarians on the Court (one known to be in poor health), this is far from a negligible likelihood. The next seat will be one which gives the GOP a chance to fundamentally alter, rather than restore/sustain, the existing ideological balance on the Court.

To put it more succinctly: It’s definitely easier to swing the likes of McCain, Collins, and Graham to kill a filibuster to get Neil Gorsuch to a floor vote to fill Scalia’s seat than it will be to, say, swing them to do it for Diane Sykes or whoever to fill Ruth Bader Ginsburg’s seat next year. Instead, Chuck Schumer will be basically defenseless, with little leverage over Trump’s nominating process.

#5 Comment By William Dalton On April 5, 2017 @ 6:31 pm

The downside for Democrats in letting the 60 vote threshold disappear is that they are left with no means of stopping confirmation of the nominee to replace Ruth Bader Ginsburg, which will be a far more significant battle, and with no assurance the nominee will be as moderate as Gorsuch.

AHCA fell before it was taken to the floor because it didn’t ENOUGH to dismantle the regime of Obamacare. Republicans can get a bill through the House that meets the objectives of the Freedom Caucus, and if it dies in the Senate the 2018 campaign will be about Democrats blocking that repeal and all the burdens of Obamacare which will continue to pile up.

#6 Comment By Jolie Roger On April 5, 2017 @ 8:31 pm

“The Gorsuch filibuster is all about McConnell’s shabby treatment of an equally qualified candidate in Merrick Garland.”

… which is all about the shabby treatment of an equally qualified candidate, Robert Bork … blah blah blah, ad infinitum.

The Dems are short-sighted. It seems likely Trump will fail to deliver on his campaign promises – ending the wars and getting us out of the Middle East, deporting the illegals and revoking foreign worker visas, the wall, ending bad trade deals etc. That means the Dems have a decent shot at the Senate and maybe even the House next year.

Why set the house on fire when you may well own it next year? Other than the sheer joy of vandalism?

#7 Comment By Mac61 On April 5, 2017 @ 10:12 pm

As an independent — I was once a strong Democrat then over years became moderately conservative — the Democratic Party has become an irrelevant clownshow. I guess, yes, fire up the base — if the base are baby boomer Clintonians. Overall, it doesn’t matter to the millions of Americans paying taxes this week and wondering what we are getting for them. Schumer-Pelosi: Creating a permanent Democratic minority. Any Dem presidential possibilities out there? No? Okay: Trump-Pence 2020 and three more justices, steamrolled in by a simple majority.

#8 Comment By Dakarian On April 6, 2017 @ 12:04 am

“The way in which it hurts Democrats is if another SCOTUS seat opens up in the next three years (I say three years since the balance of seats up for election in 2018 overwhelmingly favor GOP retention of the Senate)”

I’ve seen this but honestly, I don’t think waiting for later helps them. If the filibuster remains now and Republicans get to finally get their chance to replace a liberal judge with a conservative one and really change how the court operates they are NOT going to be content with a filibuster later. Meanwhile, the left is attempting to replay the Tea Party’s playbook but do so without sounding TOO obstructionist.

Attacking now, when the pain of Trump and Garland is still fresh is their one ticket into that camp. Also note that they DO have concerns with how pro-business he is along with the big question of how he’ll vote on the disabled. They don’t really like this candidate. Trump, Garland, and the health care fallout is giving them backbone to take a gamble. At worst, the supreme court will look.. exactly like it would if they pulled back now. At best they bankroll this into an opposition that pushes them into the Senate before those liberal judges are replaced.

Personally, I’m against the filibuster going away in principle because I dislike 100% majority rules situations. However, I don’t see how Democrats can benefit from not letting the nuke fire now.

“Why set the house on fire when you may well own it next year? Other than the sheer joy of vandalism?”

Because if they get the senate next year then they don’t have to worry about the filibuster from the new republican minority. Part of this gamble is the chance that what happened with Obama happens with Trump and Democrats get their day in the sun, with no Filibuster and possibly a good standing during the 2020 census.

OTOH, not fighting now risks them losing their base and not gaining any of the pro Trump or pro FC voters. High Risk/High Reward to fight, No Risk of Reward/High Risk of blowback for not fighting.

“AHCA fell before it was taken to the floor because it didn’t ENOUGH to dismantle the regime of Obamacare. Republicans can get a bill through the House that meets the objectives of the Freedom Caucus, and if it dies in the Senate the 2018 campaign will be about Democrats blocking that repeal and all the burdens of Obamacare which will continue to pile up.”

There’s two issues with trying to cater to the FC:
1. Moderate republicans dislike what the FC wants. When those last amendments came in which tried to nuke essential benefits the FC barely budged but moderates started dropping out. Thus there’s a risk that even if you cater to the FC you might still not get enough votes in. Note the rage about how small the tax credits were; the FC wanted those eliminated.

2. The Senate Republicans are even more moderate than the house. While the FC hated that it didn’t go far enough, several in the Senate hated how far it went. You can’t even get 50 votes, nevermind even THINK of forcing the Democrats to join in.

Btw, on the idea of ‘pin it on the Democrats’, Dems tried that with “Bush’s Recession” Didn’t help at all in 2010. PERHAPS you could’ve pulled it off if the whole RyanTrumpSwampcare thing didn’t happen.

But it did and now the word out is that “Obamacare sucks, Republicancare is worse!” Democrats in ’09 had the same issue which is why once they started on the ACA path they could not stop till they passed it. The Right would punish them for trying, the Independents for failing, and the Left for not going far enough.

Repeal/Replace has started. Part of the Republicans want a replacement. Part want it completely gone. Neither wants to compromise. Democrats just want blood. All of them are PISSED right now at Republicans for different reasons. They are going to need to put out something to make SOMEONE happy or make them forget about all this.

And again, ALL of this is going into the calculations behind this filibuster.

#9 Comment By James On April 6, 2017 @ 3:34 am

Only two possible outcomes :
A ) Either the Dems roll over and Gorsuch is confirmed without filibuster. The Dems would anger their base, alienate voters who are going to be impacted by his decisions as a SC judge, and look weak.
B ) Filibuster. The filibuster gets nuked, and Gorsuch is confirmed. Dems would please their base, look tough and keep the momentum that brought out 3 million people nationwide going.
Any intelligent observer would pick B. The whole debate about ” saving ” filibuster is rather idiotic and childish. If there is a SC opening while the GOP is in charge, they are going to fill that seat, no matter what. The filibuster is going to die anyway. Let it die. Clinging to the past rules and ” norms ” isn’t going to accomplish anything.

#10 Comment By Argon On April 6, 2017 @ 8:58 am

Bork? Qualified? Perhaps as a citizen of the United States, but not as a non-fringe jurist. He wasn’t even filibustered, going down in a vote of 42 for -58 against, pulling 4 Republican senators along.

#11 Comment By Stephen Dedalus On April 6, 2017 @ 9:37 am

@Ted W.: “And looking forward it is the Republicans, with a shrinking coalition…”

That’s great Ted! I’ve been hearing about the GOPs “shrinking coalition” for over 20 years now. Apparently it currently has shrunk so much that the party has to be satisfied with only the presidency, both houses of congress, and the majority of governorships and state legislatures in its control.

Why, it has nearly vanished!

#12 Comment By MM On April 6, 2017 @ 12:28 pm

Perhaps someone can correct me, as I’m largely ignorant of Senate procedures.

Say the Democratic Party filibusters a vote on Judge Gorsuch. All that does is tie up the Senate so that it does nothing else.

What’s the problem with the GOP setting aside the nuclear option and letting that filibuster go on indefinitely? The Senate will accomplish nothing while that happens and the filibustering party will negatively impact its own public opinion ratings. Which could lead to a 55+ vote Senate majority in about a year and a half.

Is there something I’m missing?

#13 Comment By Kurt Gayle On April 6, 2017 @ 2:01 pm

Noah, granted that I’m COMPLETELY OFF-TOPIC, but I did want to revisit a serious suggestion I made to you during the election campaign (I hope you remember, but if not, that’s OK, too):

I suggested to you that, after Donald Trump was elected President, you contact the appropriate people in the White House and ask to produce a Shakespeare play in the White House – or at a nearby Washington venue under White House auspices – to be attended by the President and the First Lady, the Vice President and the Second Lady, the Trump Cabinet and a gazillion other dignitaries, including as many prominent Democrats as will (hopefully) accept the invitation to attend.

I think this idea would work because, although you’re a Brooklyn Democrat who voted for Hillary (you were straight-up about it), you’re (1) a brilliant Shakespeare scholar, (2) an excellent and experienced producer of both film and theater, and (3) you, of all people, understand the quantum boost to public interest in Shakespeare that could result from a White House production of one of his plays. (In addition, a lot of people in the Trump White House are hardly doctrinaire Republican types and they would quickly see the good things that could come from working with you on this project.)

Also, you’re in the theater business and you have good contacts who might be willing to come on board and help you bring this project to life! Another thing: Secretary of the Treasury Steve Mnuchin (“Sully” and other films) shares some of your Wall Street background and he also has an interest in supporting good productions.

Noah, could you please give this suggestion some thought?

One more thing: If you had the opportunity to produce a Shakespeare play at the White House, Noah, what would be your top three choices?

#14 Comment By Captain P On April 6, 2017 @ 2:03 pm

Nice job Dems. Your objections to Gorsuch were laughable (“he doesn’t look out for the little guys.” Really? Your complaint against an appellate judge is that he applies the law instead of showing favoritism for sympathetic plaintiffs?). The guy has unimpeachable character and brilliance, and will be a good check on any overreaching by Trump, whereas it was ENTIRELY realistic Trump might try to pick some flunky.

Now the GOP will be able to vote in whomever they want if Ginsburg, Breyer, or Kennedy (all 78 or older) retires, instead of (like Bush) balancing a hardcore textualist (ALito) with a more centrist judge (Roberts).

#15 Comment By balconesfault On April 6, 2017 @ 2:16 pm

@Richard M “It’s definitely easier to swing the likes of McCain, Collins, and Graham to kill a filibuster to get Neil Gorsuch to a floor vote to fill Scalia’s seat than it will be to, say, swing them to do it for Diane Sykes”

Ha ha ha! The first time I actually see political courage on the Senate floor from McCain, Collins, and Graham during the role call … rather than simply some political posturing before kowtowing to whatever McConnell tells them to vote … I’ll be happy to send you a bottle of good wine. Feel free to remind me if that ever happens.

#16 Comment By Noah Millman On April 6, 2017 @ 2:57 pm

Kurt: that is both kind and flattering of you to say. Whether I can legitimately call myself a scholar may be disputed, but I appreciate very much how clearly you enjoy my writing in that area.

What play would I do? Well, I’ve got a screen adaptation I wrote of Timon of Athens set in late-Yeltsin-era Russia sitting on the shelf here . . . But that might hit just a bit too close to home.

Do you mind my asking whether our fields overlap in any way?

#17 Comment By Trin On April 6, 2017 @ 3:25 pm

I must be misunderstanding somthing, because It seems obvious to me that the GOP is overlooking an easy strategy: let the Democrats filibuster and wait them out. They’re not going to keep it going for two years, are they? How many days would it be likely to last, tops? Is there some reason that this isn’t a valid strategy?

#18 Comment By Kurt Gayle On April 6, 2017 @ 4:39 pm

Do our fields overlap in any way? Goodness, no, Noah. As I wrote back last July: In 1956 (or ’57) a friend and I were offered train tickets and theater tickets to see London’s Old Vic Company perform Shakespeare’s Macbeth in Washington, DC (with a young Claire Bloom — THE Claire Bloom — as Lady Macbeth). In preparation I first struggled through Shakespeare’s original Macbeth — until someone suggested the Charles and Mary Lamb’s simplified-English version of the play, which solved part of the problem. The other part of the problem was solved by a sympathetic teacher at school who provided my friend and me with some background English history to read in order to gain context. Thus prepared, our first experience with Macbeth was an unforgettable delight! I was hooked on Shakespeare, but — with a few theater exceptions — the closest I normally come to Shakespeare now is cinematic productions – which is why I was so appreciative of your list of cinematic best productions of Shakespeare that you posted last year.

I’m really serious about your shaking the White House cage re producing Shakespeare in the White House. You’d be great. They would like you. I hope you’ll give it a shot. What can you lose? Besides, we all can win a heckuva lot if the White House takes you up on it! Damn the torpedoes.

The Bard would smile, don’t you think?

#19 Comment By CharleyCarp On April 6, 2017 @ 10:11 pm

If 3 Republican senators could have been relied upon to preserve the filibuster next time, to reject a particularly heinous nominee, well, you can as easily count on them to vote down a heinous nominee.

I don’t think Senate Democrats have lost anything here, except the chance to be explicitly complicit in denying Merrick Garland.

People expecting a Justice Gorsuch to be a meaningful brake on Trump are going to be as disappointed as the people who thought he’d avoid new military activity in the Middle East.

#20 Comment By Nelson On April 6, 2017 @ 11:19 pm

I would say, the Democrats should not have been so hasty to force the end of filibuster. Trump will probably get the chance to nominate more judges. If any of them turn out to be extreme, they just removed cover for moderate Republicans. “Of course I respect Trump’s nominee but I also respect the traditions of the Senate” they could say. If they didn’t like the guy they could claim support for him but not vote to overturn the filibuster. But by opposing a non-extreme judge they tore up that piece of political cover and now there is a much higher chance of an extremist becoming a Justice.

#21 Comment By balconesfault On April 7, 2017 @ 9:56 am

@Nelson But by opposing a non-extreme judge they tore up that piece of political cover and now there is a much higher chance of an extremist becoming a Justice.

That lot was cast when McConnell decided to sit on Garland’s nomination without a hearing for 10 months.

Anyone who doubts that the GOP would have invoked the nuclear option for ANYONE supported by the Senate Majority Leader seems to not really be paying much attention.

Yep – the political cover is now gone. And any Republicans who vote for your presumed extremist nominee will get to face their constituents and explain why extremism on the bench is good for America.

#22 Comment By Richard M (The Other One) On April 7, 2017 @ 7:27 pm

The way in which it hurts Democrats is if another SCOTUS seat opens up in the next three years

This really is the one way it poses a risk to Democrats.

It would be harder for McConnell to sustain going nuclear to put a conservative into Ruth Bader Ginsburg’s seat than it is to fill Scalia’s – which is, after all, just restoring the 2016 status quo balance. If Trump really pulled a nominee from his list, it would be just that – and I’m not sure if McConnell would have had the votes to do it.

But perhaps Schumer is willing to gamble that Ginsburg or even Kennedy make it through this presidential term, against the certain gains he will get from assuaging his enraged base.

P.S. One *potential* other cost is that it could well cost McCaskill her seat. But that was ultimately her decision, not Schumer’s – her vote was not needed to filibuster, and Schumer doubtless allowed Dem senators in deep red Trump states a no pressure decision on that.

#23 Comment By Richard M (The Other One) On April 7, 2017 @ 7:33 pm

And any Republicans who vote for your presumed extremist nominee will get to face their constituents and explain why extremism on the bench is good for America.

You know, it’s pretty empirically apparent by this point that judicial nominee votes are rarely significant on Election Day. It matters only to the hard core base of each party, not to swing voters.

And the idea that Gorsuch – who was endorsed by Obama’s solicitor general, and every Democratic clerk who has ever worked for him – is “extreme” is laughable. But it’s fairly obvious that you’d say the same of pretty much *any* Republican nominee not named David Souter.

#24 Comment By Richard M (The Other One) On April 7, 2017 @ 7:37 pm

If the filibuster remains now and Republicans get to finally get their chance to replace a liberal judge with a conservative one and really change how the court operates they are NOT going to be content with a filibuster later.

Sure, most of the GOP caucus won’t be content with having such a nominee filibustered. But there’s a very strong chance that Lisa Murkowski, Susan Collins, John McCain and Lindsay Graham might be. Schumer only needs to pick off three out of 52. They only joined the nuclear option on Goruch reluctantly, by all accounts.

#25 Comment By Fran Macadam On April 7, 2017 @ 11:01 pm

“It seems likely Trump will fail to deliver on his campaign promises – ending the wars and getting us out of the Middle East, deporting the illegals and revoking foreign worker visas, the wall, ending bad trade deals etc. That means the Dems have a decent shot at the Senate and maybe even the House next year.”

That does not compute. Why would an electorate highly motivated to support all those things suddenly turn to those most opposed to their wishes?

This is why Trump won. He expressed views that are anathema to the Washington consensus, but reflect the country’s grass roots concerns. If he fails to deliver, as Obama also did not, then the electorate will be looking for someone else committed to their interests.

#26 Comment By Ellimist000 On April 8, 2017 @ 1:48 am

Dakarian,

“I’ve seen this but honestly, I don’t think waiting for later helps them. If the filibuster remains now and Republicans get to finally get their chance to replace a liberal judge with a conservative one and really change how the court operates they are NOT going to be content with a filibuster later.”

Yea…I was/am ambivalent about the decision to filibuster Gorsuch, but this simple fact sways me in this direction. Surely all the Republicans pointing the finger at Democrats for forcing the end of the filibuster can see that in light of how the GOP acted in the Obama years, that for Democrats to rest their political futures on the restraint and respect for tradition of people like McConnell would be utterly, unimaginably insane. The very thought of it is altering my grip of reality as we speak 😉

#27 Comment By Baconian On April 10, 2017 @ 12:10 am

@Argon – “Bork? Qualified?”

From Wikipedia: “Bork served as a Yale Law School professor, Solicitor General, Acting Attorney General, and a judge of the United States Court of Appeals for the District of Columbia Circuit.”

So yes, obviously, Bork was qualified. And the credentials above don’t exactly describe a “fringe jurist”.

“He wasn’t even filibustered”

Of course not. The Democrats controlled the Senate (53-47). They had the votes and they screwed him.

@Ellimist000 “for Democrats to rest their political futures on the restraint and respect for tradition of people like McConnell would be utterly, unimaginably insane”

That flows two ways. No Republican alive at the time ever forgot what the Democrat Party of Teddy Kennedy did to Bork.

The fight for the Courts has become a life-and-death struggle for control of the ability to arrest and imprison political and cultural opponents. Since I tend to the conservative side of the spectrum, I hope Trump and the GOP pack the courts. They haven’t yet contemplated anything as radical as FDR’s complete rejiggering (i.e. changing the number of SCOTUS justices etc), but they should be prepared to do that too.