Neil Gorsuch's confirmation to the Supreme Court isn't really the question when it comes to Neil Gorsuch's nomination to the Supreme Court; the real question is how much of the Senate's already-depleted filibuster rules his confirmation will leave in its wake.
But even that is kind of beside the point.
If the current debate is any indication, the writing is on the wall for the demise of the 60-vote threshold for overcoming filibusters — a Senate tradition whose roots date back 200 years. Whether it is further disassembled next week, during the next Supreme Court nomination or at some other time, it seems only a matter of when, not if.
And the current debate pretty much says it all. As The Washington Post's Paul Kane writes, Democrats don't really even have illusions about successfully filibustering Gorsuch. They pretty much know that if they can summon the 41 votes needed to do so, Republicans will probably just invoke the “nuclear option” and get rid of filibusters for Supreme Court nominees — just like then-Senate Majority Leader Harry M. Reid and the Democrats did for all nominees except the Supreme Court three years ago.
And from there, Kane writes, “once both sides are guilty of breaching that standard on nominations, it would seem to be only a matter of time before a future majority obliterates filibusters on other legislation.”
Some, including yours truly, have suggested it might be better for Democrats to play the long game and keep the filibuster intact — at least for the next Supreme Court nominee. Gorsuch, after all, won't change the balance of the court from what it was before the death of Antonin Scalia a year ago. But the next nominee could very well be replacing swing-vote Anthony M. Kennedy or a liberal-leaning justice, shifting the court clearly in the GOP's favor.
However, none of that seems to matter to Democrats. Incensed by the GOP's move not to even allow hearings on President Barack Obama's nomination of Merrick Garland last year — and spurred by a base that is out for blood — they say that strategy is beside the point. Sen. Thomas R. Carper (D-Del.), a moderate, told Kane it would be “not much of a prize” to leave the filibuster in place for the next nominee.
Part of this is certainly Democrats' hard feelings about Garland. But perhaps it's also that they know Republicans are very likely to nuke the filibuster regardless, whenever it suits them.
Trump, after all, has already signaled that he's very much in favor of the nuclear option to confirm Gorsuch. And given his authoritarian streak, there's basically no reason to think he won't say the same about any other filibustered legislation over the next four years.
Republicans also know they probably wouldn't be punished for it. Americans collectively shrugged when Democrats rolled back the filibuster rules in 2013 and when the GOP wouldn't give Garland a hearing with a full 10 months left in Obama's tenure. Democrats hoped and prayed that people would care and that they could attack vulnerable Senate Republicans for going along with the gambit. But people didn't care — at least not the ones who could help Democrats win elections — and the strategy was quickly abandoned.
The reason people didn't care is because there is little nostalgia for the norms of politics these days. Whatever norms Trump didn't squash in his 2016 campaign were already on the way out because of our partisanship.
It's a partisanship that allows us all to excuse basically anything our politicians do, no matter our political traditions or whether their actions are at all consistent with the principles they used to profess. It's a partisanship that leaves so few swing voters that the parties have more interest in appealing to their bases.
And even if Republicans don't want to get rid of the filibuster, they may be convinced that Democrats would just do it themselves eventually. So why delay the inevitable? It's essentially (to borrow another nuclear term) the mutually assured destruction of the filibuster.
The only thing that can save the filibuster right now is a distinct change in the direction of our politics — both in Congress and in the country. And there's very little indication that we'll pull a 180 anytime soon.