After days spent in fruitless attempts to get concrete answers out of Neil Gorsuch on just about anything, some Democrats in the Senate have decided they’ve had enough:
As the Senate Judiciary Committee was hearing from witnesses for and against Judge Neil Gorsuch, his Supreme Court nomination was delivered a critical blow: Senate Minority Leader Charles E. Schumer (D-N.Y.) said he would join with other Democrats in filibustering Gorsuch — a move that would require at least 60 senators to vote to end debate on the nomination.
Republicans have vowed to change Senate procedures if Democrats do so to quickly confirm Gorsuch — but Schumer suggested they should focus instead on Trump’s nominee.
“If this nominee cannot earn 60 votes — a bar met by each of President Obama’s nominees, and George Bush’s last two nominees — the answer isn’t to change the rules. It’s to change the nominee,” he said.
That last part is questionable, because this really isn’t about Gorsuch in particular, even though Democrats can make a strong case that he would be an extremist on the court (some analyses suggest he’d be even farther to the right than Samuel Alito and Clarence Thomas). It’s not even about their sincere frustration with Gorsuch’s unwillingness to give satisfying answers to their questions during the hearings, because that’s exactly what they and everyone else expected.
But filibustering Gorsuch is still the right thing to do.
Now for some straight talk: Everyone knows who Neil Gorsuch is and what kind of justice he’ll be. Democrats have tried to get him to admit it, knowing that he never will, while he pretends to have an open mind on everything and a judicial philosophy unsullied by any particular normative beliefs about policy. It’s an act, and it’s one that Republican nominees in particular have honed over the years: Claim you can’t say anything about past cases or present cases or future cases, and even if you could, you really have no opinions about anything. Or maybe you have a stray opinion here or there, but those opinions lay upon your conscience with all the weight of a few downy feathers, easily brushed aside when it comes time to apply the law and the Constitution.
It’s utterly dishonest, and everyone knows it. Gorsuch was presented to Trump as a possible nominee by the Heritage Foundation; he was on its list not because he’s keen of mind and pure of heart, but because he’s a staunch conservative who, above all, could be counted on to vote to overturn Roe v. Wade. The lie that he and all his supporters tell is that every case has one true and objective outcome that you can reach if only you put aside crass ideology and allow yourself to be guided by the light of the Constitution’s wisdom. No one who knows anything about the law could believe that, no matter how often it gets repeated.
So what should Democrats do in the face of that reality? One approach they could take is to say that as objectionable as they find Gorsuch’s beliefs, he’s qualified for the position and absent some truly insane views or criminality, the president should get his nominees confirmed. That was the approach most senators used to take, which is why nominees as different as Antonin Scalia and Ruth Bader Ginsburg were confirmed unanimously or nearly so. There are still a few senators on both sides who take that approach, but not many.
Another thing Democrats could do is vote against Gorsuch but not filibuster him, even if they have the votes to sustain a filibuster. There’s precedent for that: In 1991, Democrats had the votes to filibuster Clarence Thomas but didn’t, and he was confirmed by a vote of only 52-48, which just happens to be the split between Republicans and Democrats in the current Senate. Voting against Gorsuch but not filibustering him would make their objection clear but also allow him to be confirmed.
A filibuster, on the other hand, is a way of raising the stakes of the nomination. If Democrats filibuster, Senate Majority Leader Mitch McConnell (R-Ky.) will hold a vote to change Senate rules to disallow filibusters on Supreme Court nominations, and Gorsuch will get confirmed — but not until after the controversy has been elevated into a more dramatic confrontation. (This would be even more dramatic if the Democrats mount an old-fashioned “talking filibuster” where they stop all other Senate business to make an extended case against Gorsuch.)
So why filibuster if the end result will be the same? The reason is that these are truly extraordinary circumstances. The Republicans’ refusal to allow Merrick Garland to get even a hearing to fill this seat was nothing short of a crime against democracy, a twisting of democratic norms beyond all recognition. Garland should be in this seat, and Democrats should go as far as they possibly can to avoid giving even a shred of validation to the way Republicans stole it.
There’s also an important political goal that can be served by elevating this controversy, even if Gorsuch can’t be stopped. Democrats in Congress have almost no institutional power at the moment, and the only way they’re going to get some of that power is if 2018 is a wave election. A wave election happens when one side’s voters are angry and motivated. Right now, Democratic voters are definitely angry and motivated, and it’s the job of Democrats in Congress to keep showing those voters what they ought to be angry about — and that their representatives are fighting as hard as they possibly can.
So yes, filibustering Gorsuch is the right thing to do, even if it won’t accomplish the short-term goal of stopping his nomination. There’s a lot more at stake.