Something unprecedented could happen this week when the Senate votes on Neil Gorsuch’s nomination to the Supreme Court — but it won’t be Republicans triggering the so-called nuclear option to confirm him a by simple-majority vote.
No, what would be historically unprecedented would be for Democrats to filibuster Gorsuch.
There has never been a successful filibuster of a nominee for associate justice in the history of the republic — and the idea that Gorsuch should be the first is patently absurd. By any reasonable standard, President Trump nominated a jurist of impeccable temperament, character and intellect who has won plaudits from across the political spectrum. Liberal Harvard Law professor Laurence Tribe has declared that “Gorsuch is a brilliant, terrific guy who would do the Court’s work with distinction.” Former Obama acting solicitor general Neal Katyal, who introduced Gorsuch at his confirmation hearings as a “wonderfully humane and decent person,” penned a New York Times op-ed in which he suggested that “liberals should back Neil Gorsuch” because he would “stand up for the rule of law and say no to a president or Congress that strays beyond the Constitution and laws.”
This is the guy Democrats want to target for a precedent-breaking filibuster?
The fact is, if Gorsuch cannot get 60 votes, no one nominated by a Republican president can. Filibustering Gorsuch is not only transparently partisan but also strategically stupid. There is heartburn among some GOP senators over “going nuclear,” and if Trump had nominated a more controversial nominee, Republicans might not have the votes to change the Senate rules. But by threatening to filibuster someone as obviously qualified as Gorsuch for the Scalia seat, Democrats have united the GOP behind going nuclear.
Moreover, Democrats have no one to blame but themselves for the bind they are in. At every step along the way, they are the ones who broke long-standing precedent on judicial nominations. During the George W. Bush administration, they used the filibuster to block the nomination of Miguel Estrada — a supremely qualified nominee for the U.S. Court of Appeals for the District of Columbia Circuit who had the support of a clear majority in the Senate. Estrada was the first appeals court nominee ever to have been successfully filibustered. And he was not alone. Democrats blocked 10 Bush judicial nominees in 2003 and 2004 in this way.
So when President Barack Obama was elected and Democrats had control of the Senate, Republicans used the precedent Democrats had set. Democrats responded by breaking precedent yet again — this time changing the Senate rules to eliminate the filibuster for all nominees except for the Supreme Court, including lifetime appointments to the federal circuit courts. They did this so that Obama could pack the courts with liberal judges that could not meet the 60-vote “standard.” And pack the courts he did. Obama appointed more than a third of all federal judges and flipped most of the circuit courts of appeal from conservative to liberal majorities.
Now, after that sordid history, Senate Minority Leader Chuck Schumer (D-N.Y.) says with a straight face that “when a nominee doesn’t get 60 votes, you shouldn’t change the rules, you should change the nominee”? Please. Once the line was crossed for lifetime appointments to the federal bench, Republicans can now rightly ask: If Democrats yet again do something unprecedented in U.S. history and filibuster Gorsuch, why not follow the precedent Democrats set and extend their rules to Supreme Court nominees?
And let’s be clear: That is precisely what Democrats planned to do if Hillary Clinton had been elected. Last year, when everyone still thought that Clinton was going to be elected and Democrats appeared likely to win back control of the Senate, vice-presidential nominee Sen. Tim Kaine (Va.) said Democrats would go nuclear if Republicans filibustered her Supreme Court nominee. “If [Republicans] think they’re going to stonewall the filling of that vacancy . . . then a Democratic Senate majority will say, ‘We’re not going to let you thwart the law.’ We will change the Senate rules to uphold the law.”
Now Kaine and his fellow Democrats are the ones “stonewalling” and “thwarting the law.” So they have nothing to complain about if the Republican Senate majority follows their advice and precedent and votes to “change the Senate rules to uphold the law.”
Schumer now says that he wishes Democrats had not gotten rid of the filibuster in 2013. If that were true, he would not use the filibuster against a man so obviously qualified as Gorsuch. So let’s remember the shameful history that led us to this moment. It is Democrats who repeatedly broke precedent on judicial nominations — first with the filibuster of Miguel Estrada, then with the nuclear option in 2013, and now once again today with their threatened filibuster of Gorsuch. If Republicans end up having to pull the nuclear trigger this week, it will only be because Democrats forced their hand.
Maybe one day, after both parties have had to live with the consequences of the nuclear option, there will be a broad consensus to go back to the way things were. But for now, it seems, Democrats seem hellbent on provoking a nuclear showdown. The choice is theirs.