By Jeff Knox
(February 16, 2017) The nomination of Neil Gorsuch to the Supreme Court has triggered the expected ranting and railing from Senate Democrats, and the left in general. In response, many conservatives are calling for Senate Republicans to give Democrats a taste of their own medicine by pulling the trigger on the so-called “Nuclear Option” – majority vote to change Senate rules, revoking the right to filibuster Supreme Court nominees.
That would be a strategic mistake.
Senate Democrats invoked the “Nuclear Option” a couple of years ago when Republicans were actively using the filibuster rules to block Obama’s judge appointments, but they stopped short of making the new rule apply to Supreme Court nominees. Had they held the majority in Obama’s last year, there can be little doubt that they would have extended the filibuster ban to SCOTUS picks in order to overcome Republican objections, but Republicans should not resort to the same tactics.
Not only would invoking the “Nuclear Option” set a precedent that would surely come back to haunt them in the future – just ask Democrats how they like not being able to effectively block Trump’s lower court judicial appointments – but it would also jeopardize the filibuster in general, removing one of the few tools the minority has for forcing compromise. Which again is fine when your party is in the majority, but not so good when you find yourself in the minority.
There are ways for Republicans to win confirmation of Judge Gorsuch without resorting to the “Nuclear Option.” Some of the experts at the Heritage Foundation wrote a paper on the subject before Gorsuch was even nominated. Their suggestion of using what is called Rule XIX to limit debate, thus limiting the duration of a filibuster, is pretty straightforward, but even that is not likely to be necessary.
The purpose of the filibuster is not to block an action in the Senate, but rather to delay action to give time to whip votes and bring pressure to bear. In the current situation, the delay and attention works to the advantage of Republicans, not Democrats. Gorsuch is clearly qualified and widely respected, and he has a reputation for standing up to executive and bureaucratic overreach. He is actually more likely to rule against Trump if he tries to accomplish too much with a pen and a phone.
By delaying, Democrats give more opportunity for the public to realize that they are simply being petulant. Public pressure will weigh on Democrat senators who will be facing reelection next year – particularly those from states that supported Trump, some by a wide margin – convincing them to cross the aisle and support Gorsuch’s confirmation.
Democrat leaders are making a big mistake going all out to block Gorsuch’s confirmation. There might already be enough votes to overcome a filibuster, and if not, those votes will come soon enough. Republicans just need to move forward with confirmation hearings and a vote. If they really feel they don’t have enough votes to overcome a filibuster, they can invoke Rule XIX and let the Democrats talk themselves out. But just moving forward will probably be enough.
Naturally, Democrats are pointing to Republicans’ refusal to hold hearings on the nomination of Judge Merrick Garland to fill the vacancy left after the sudden death of Justice Antonin Scalia, and they have a point, but only to a point. Republicans foolishly rushed to declare that they would reject any candidate Obama chose after Scalia’s death, just as Democrats were foolish to reject Trump’s appointment sight unseen. But unlike Republicans, who treated Garland respectfully, even while they refused to hold hearings on his confirmation, Democrats have launched scurrilous and baseless attacks on Gorsuch. These tactics are not painting Democrats in a favorable light.
Court watchers know that Gorsuch’s appointment does little to shift the balance of the Court the way Merrick Garland’s would have. In fact, while Gorsuch is considered a judicial conservative, in some areas, like 4th amendment, he can be expected to side more with the “liberal” wing of the Court. Blocking a confirmation vote, and saying nasty, patently untrue things about the nominee, just makes the Democrats look petty and vindictive. That won’t play well with the public at large, and is peel off enough Democrat senators to break from their leadership and vote to bring the nomination to the floor.
Minority Leader Schumer has to oppose Gorsuch’s confirmation, because he is accountable to the radical Democrat base. Individual senators – especially those from “conservative”-leaning states – have no such mandate. Their first obligation is to their home-state voters, and for many senators, those voters are tired of petty, partisan politics.
If Republicans push forward with confirmation hearings for Gorsuch, they will force the Democrats’ hand, and should win a surprisingly easy victory. All of the Democrats can vote against Gorsuch in the final vote if they want to, because all it takes for Republicans to prevail is a simple majority. Getting to that vote is the challenge, as it requires 60 votes for “cloture,” that is, to shut down a filibuster. Democrat senators can vote to end the filibuster, then vote against Gorsuch’s confirmation. That would allow them to pick which vote to focus on, depending on the audience they’re addressing. That is a very easy out for politicians facing a potentially tough reelection campaign.
Republicans can win this fight without deploying the “Nuclear Option.” Using that option would be the height of hypocrisy, and would diminish Republican support. They need to stick to the high ground, push forward with confirmation hearings, and bring public pressure to bear against the Democrats’ weaker links.