A federal appeals panel’s decision to uphold the stay of Donald Trump’s temporary travel ban has dramatically raised the stakes in the coming Supreme Court fight — and increased the likelihood that Republicans may have to use the nuclear option to get Neil Gorsuch through the Senate.
The left has been in a froth since Trump took office, and members of the Democratic establishment in Washington are terrified that the rising anti-Trump movement will turn on them in the same way the tea party turned on the Republican establishment. The Post reported that when Senate Minority Leader Charles E. Schumer (D-N.Y.) and House Minority Leader Nancy Pelosi (D-Calif.) spoke at a rally in front of the Supreme Court two weeks ago to protest Trump’s travel ban, they were jeered by some in the crowd. And thousands of protesters showed up outside Schumer’s Brooklyn home recently holding signs that read “Grow a spine, Chuck!” and “Chuck’s a chicken” and chanting “Filibuster everything!” One of the protest leaders screamed to the crowd: “He has to champion the resistance, or he has to get out of the way!”
In other words, even before the 9th Circuit decision, Senate Democrats were under enormous pressure from their base to delay, postpone, obfuscate and derail Gorsuch’s nomination — and now that pressure is rising. Whether Trump appeals the ruling, fights the case on the merits or issues a new executive order, this much is certain: The left will fight him all the way to the Supreme Court. And the left knows it will have a harder time prevailing over Trump in a court with a restored 5-4 conservative majority. The liberal base will demand that Senate Democrats hold what it calls the “stolen seat” open.
There are now 52 Republicans in the Senate, which means that if any Senate Democrat decides to launch a filibuster, Republicans will need eight Democrats to cross over and help them stop it. Initially, nine Democrats reportedly said Gorsuch should get an up-or-down vote. But already one of those nine, Sen. Jeanne Shaheen (N.H.), has wavered, saying she only meant there should be an up-or-down vote on whether to have a vote. Let’s see what the others do if, say Sen. Elizabeth Warren (Mass.), launches a filibuster. The protests outside Schumer’s house were mild compared with the liberal hellfire that will rain down on Democratic senators who are seen as providing the deciding vote to let Gorsuch through — especially if he then goes on to uphold Trump’s travel restrictions.
At a bare minimum, Democrats will maintain a united front to delay Gorsuch’s nomination as long as they can. They are already using every procedural tool they can to drag out votes on Trump’s Cabinet nominees. What makes anyone think they won’t do the same with Trump’s Supreme Court nominee?
Democrats will press Gorsuch to give his opinion on the constitutionality of Trump’s travel ban. He will rightly refuse to answer on the grounds that he may have to rule on it in the near future — which will only serve to underscore the stakes for Democrats in keeping him off the court as long as possible. The nine swing Democrats will promise to eventually allow a vote on his nomination, but only after Gorsuch has jumped through a never-ending line of procedural hoops and hurdles. They will request more hearings, flood him with thousands of written questions and then demand he answer follow-up questions to clarify his unsatisfactory answers. They will look for any slip, any excuse to delay the process or change their minds so that they can backtrack on their commitment to allow a vote.
The left understands that it is not just the travel ban that is at stake. Just as Democrats are waging a campaign of obstruction on Capitol Hill, they also plan to wage a campaign of obstruction by litigation on everything Trump does. They will sue to stop his deportations of undocumented immigrants who have been convicted of a crime, his efforts to build a wall, his replacement for Obamacare, his greenlighting of the Keystone XL and Dakota Access pipelines, his rollback of federal environmental regulations and everything else he tries to do.
They are confident they can prevail in the federal district and circuit courts of appeal, because Senate Democrats used the nuclear option in 2013 to eliminate the filibuster for lifetime judicial appointments, allowing President Obama to pack these courts with liberal, activist judges. Obama appointed more than one-third of the federal bench and flipped most of the circuit courts of appeal from conservative to liberal majorities.
What this means is that, in many cases, the Trump administration may be going to the Supreme Court to appeal a lower court ruling that has gone against the administration. A split decision on the Supreme Court leaves the lower court ruling in place. If Justice Anthony Kennedy votes with the liberal bloc, the lower court ruling becomes precedent. So the stakes for Gorsuch’s nomination — and any future justices Trump may nominate — could not be higher.
For Republicans, the stakes in the travel ban fight are high as well. Many on the right believe the travel ban was unnecessary. But what is now at stake is not just immigration policy but also the president’s authority as commander in chief. If Trump loses, he will have diminished the power of the presidency, with potentially disastrous consequences for our national security.
Republicans can’t allow that to happen. And they cannot allow the left to use the courts to block the rest of Trump’s agenda. Senate Republicans need to start using the same rules Democrats set in 2013 to fill the federal district and circuit courts with as many conservative judges as possible so that they can restrain the activist judges Obama appointed. And they should not allow Senate Democrats to delay Gorsuch’s confirmation. They should hold hearings and move him to the Senate floor expeditiously.
And if Democrats try to block or even delay a vote, go ahead and push the nuclear button.