Neil Gorsuch will be the next Supreme Court justice. “He’ll be on the floor of the Senate next week and confirmed on Friday,” promised Mitch McConnell, and there is no reason to doubt him. Either Democrats will filibuster, and Republicans will change Senate rules to prevent filibusters of Supreme Court nominees, resulting in Gorsuch being confirmed, or Democrats will fail to filibuster, resulting in Gorsuch being confirmed. The only question at issue is in what fashion Gorsuch takes his seat. Republicans are fervently working to persuade Democrats to let Gorsuch take his seat without a change in the filibuster rule. Why do you think they care so much?
If Republicans are telling Democrats that any attempt to filibuster the Republican nominee will lead to the Republicans abolishing the filibuster, it stands to reason that the filibuster is not worth keeping around. What value is there in a weapon one’s adversary can disarm at any time?
Republicans have devised a somewhat complicated response to this objection. Yes, they concede, the filibuster is useless right now, in this instance. But that is only because the merits of this particular nomination so obviously and clearly lie on their own side. “If Neil Gorsuch isn’t good enough, there’s never going to be a nominee good enough, and so I don’t see any advantage to rewarding bad behavior,” says Senate Majority Whip John Cornyn. Republican senators’ “appetite is entirely a function of circumstance,” argues Liam Donovan, a Republican lobbyist. “Only seeing such a model jurist held hostage to cynical political whims would be enough to compel the righteous indignation necessary to go nuclear.” (Going “nuclear” means changing Senate rules to limit the filibuster.) If Democrats drop the filibuster, Republicans will leave it in place, and maybe Democrats will get to use it next time. Maybe!
One flaw in this argument is that it utterly ignores the circumstances by which Gorsuch came to his nomination. Yes, he is well qualified and respected by liberal peers. On the other hand, he only has the opportunity to claim a Supreme Court seat because Republicans violated a long-standing norm that allows presidents to nominate somebody — the exact parameters of who that somebody is being the subject of regular dispute — to fill a vacant seat.
The Republican incredulity that Democrats would have the gall to object to fine, upstanding Neil Gorsuch is quite special. (How can you complain about me picking up some money I found lying there on the sidewalk? Never mind whether it got there because I ripped the wallet out of your pocket.)
The notion that Republicans would somehow not be willing to abolish the filibuster for Trump’s next nominee, after being willing to do so to complete the wake of the judicial heist of the century, defies plausibility. Every Supreme Court vacancy counts for one vote. The next vacancy will matter just as much as this one. Sure, if Trump decides to nominate Michael Cohen or Scott Baio to the Court, some Senate Republicans might object. But Trump has clearly indicated that he defers on this subject to regular Republicans. The next judicial vacancy will seem at least as crucial as this one, and the pressure on Senate Republicans to confirm their party’s choice will be overwhelming.
We already live in a world where a Republican president has a 50-vote standard to confirm a nominee to the Court. The only question is whether Democratic presidents have the same standard. The worst possible outcome for Democrats would be to allow Republicans to fill a vacancy with 50 votes while forcing their party to muster 60. And there is a lot of reason to believe this is the case right now. Barack Obama’s last Supreme Court nominee, the highly respected and moderate jurist Elena Kagan, got the support of just five Republican senators, of which two were driven into retirement by actual or threatened primary challengers in part because of those votes. Once Democrats lost their supermajority, their ability to seat a justice probably disappeared with it.
In 2014, Ruth Bader Ginsburg told Elle that she did not want to retire in part because she believed Senate Republicans would filibuster any left-of-center nominee to replace her:
Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.
Mitch McConnell wants to preserve an ambiguous situation where the norms say one thing and the rules say another. This is to his advantage, because he is a serial violator of norms. This isn’t a moral question — he’s a brilliant tactician and he’s very good at identifying political strategies that are legal but which have not been used due to social convention. If McConnell can use the threat of the nuclear option to make the filibuster of a Supreme Court nominee a useless weapon for the opposing party, he can preserve it as a potential useful one for himself. If Democrats don’t make McConnell abolish the Supreme Court filibuster, he may use it to blockade their next nominee, and they will have only themselves to blame.