Judge Neil Gorsuch is about to have the dubious distinction of being the first Supreme Court nominee in modern history to be filibustered entirely by one party.*
But, here's the but: Schumer is launching into a battle he probably can't win.
His filibuster is laying the tripwire for Republicans to just simply get rid of the minority party's ability to require 60 votes on any nominee. And that means Democrats are disarming their future selves from their best tool to block Supreme Court nominees down the road — say, when moderate and liberal vacancies open up and give Trump a chance to change the balance of power in the court for decades.
“The chance of success of this are basically zero,” said Robert David Johnson, a Brooklyn College history professor.
Republicans have only 52 members, which means they're faced with a choice: scramble to find eight red-state Democrats to join them to support Gorsuch, or blow up the filibuster for nominees. (In 2013, Senate Democrats got rid of the filibuster for Cabinet and lower-court nominees.)
President Trump has expressed basically no qualms about getting rid of the filibuster, urging his party in the Senate to “go nuclear,” as the move is dubbed. Senate Majority Leader Mitch McConnell (R-Ky.), a practiced student of Senate procedure, is more hesitant. But he's indicated getting Gorsuch on the bench is his top priority.
Schumer's filibuster comes as a surprise to basically no one in Washington. Senate Democrats, under Schumer's leadership, have slow-walked Trump's Cabinet nominees, even going so far as to boycott hearings. They've forced Vice President Pence to come to the Capitol and cast a rare tiebreaking vote to get Education Secretary Betsy DeVos through. A former top Senate Democratic aide argued in the pages of The Washington Post recently that Senate Democrats should just stall everything, nominees and legislation.
Democrats are under enormous pressure on the left to roadblock Trump. And liberal activists see this Supreme Court vacancy as one of the best ways to do it. Bonus: They'll be getting vengeance after Republicans held up President Barack Obama's pick for the same seat for more than a year.
Senate Dems, let's be very clear: You will filibuster & block this SC nom or we will find a true progressive and primary u in next election.
— Michael Moore (@MMFlint) February 1, 2017
It's even more fascinating that Schumer's filibuster announcement comes at this moment in time, when Gorsuch is basically at his strongest. He just wrapped up three marathon days of hearings, and Democrats failed to stick him with one single, overarching judicial reason to oppose him.
Schumer's rationale for opposing Gorsuch comes down to this: The past six or so Supreme Court nominees have received 60 votes in the Senate.
But as The Post's Fact Checker team points out, that's misleading language. There is no "standard” for Supreme Court nominees needing 60 votes. And for much of the past century, senators often gave the president deference in his or her Cabinet and Supreme Court picks, even if they didn't politically align with the pick.
Let's give Schumer credit that he knows full well some stakes. So, some game theory about what he's doing beyond bowing to pressure from his base: Perhaps there's an incentive for Democrats to force Republicans to get rid of what remains for the filibuster for nominees.
There is no longer any pretense a president will get bipartisan support for his or Supreme Court nominee, so one party was going to have to blow the filibuster eventually. And eventually, Democrats will be back in power -- hey, maybe four years from now -- and it will be their turn to try to tilt the balance of power of the court.
But as we will probably see unfold over the next few weeks or months, what the base wants is a risky thing to do.
Correction/Clarification: There have indeed been four previous filibusters on Supreme Court nominees -- but two were on one nominee, the late Chief Justice William H. Rehnquist. The last successful filibuster of a nominee was in 1968 against Lyndon B. Johnson's nomination of Abe Fortas. But opposition to Fortas was a bipartisan mix of Republicans and conservative Democrats. And that makes Gorsuch in line to be the first partisan filibuster of modern times.