Once Mitch McConnell had blockaded Barack Obama’s last Supreme Court nomination, and Donald Trump had carried the Electoral College, the chance that Republicans would fill the Court vacancy rose to 100 percent. Trump chose a well-regarded conservative jurist in Neil Gorsuch, rewarding both McConnell’s decision to mount the blockade and the institutional Republican party’s decision to mostly support Trump. The only choice before Senate Democrats is whether to allow Republicans to claim their reward the easy way or the hard way. They should choose the hard way.
The Senate rules currently allow a filibuster of Supreme Court nominees (although not nominees for other judicial nominations). But the majority can change that rule at its whim. Even before Gorsuch’s nomination, McConnell already indicated that he does not respect Democrats’ right to filibuster, and that he would eliminate the filibuster for Supreme Court nominations if one is used.
Recent history shows how foolish the Democrats would be to submit to this threat without forcing the Republican majority to take action. In 2005, faced with Senate Democratic opposition to federal court nominees they deemed ideologically extreme, Republicans threatened to eliminate the filibuster for judicial nominations below the Supreme Court level. Democrats backed down in the face of that threat. In 2013, Republicans began wholesale blockade of federal court vacancies, irrespective of the candidates’ qualifications, insisting the seats in question should not be filled at all. Democrats, in response, eliminated the filibuster for judicial nominations below the Supreme Court level. Republicans decried this choice — even though they had threatened to do the same thing — and have since held it up as justification for a wide array of unpleasant behavior, including the unprecedented blockade of Merrick Garland.
Democrats are reportedly tempted to abandon the filibuster, so that it remains in place for a future Court fight. “Preserving the filibuster now could give Democrats more leverage in the future,” some Democrats tell CNN. But this is fantastical. There is no “leverage” gained by a weapon one’s opponent can disarm at will. The Supreme Court filibuster is like a pair of handcuffs in which the handcuffed person is holding the key.
It was clear to some of us several years ago, and has become clear to almost everybody else since, that the rules of politics have changed completely. The old norms presumed that a president can fill a Supreme Court vacancy with a jurist of his own broad philosophical bent, and that the opposing party is only entitled to block a candidate they consider especially unqualified or extreme. (These norms allowed for bitter fights over individual candidates, such as Robert Bork, without questioning a president’s right to nominate somebody qualified from his own team.) Those norms are gone. The new norm is that a president needs 50 Senate votes to fill a seat, or it will go unfilled.
It would be better for the health of American democracy to change the rules to something more stable. But pretending otherwise delays rather than hastens the day when some formal rule change comes about. In the meantime, Democrats have an extremely simple choice: They can make McConnell abolish the filibuster, or wait for the day when McConnell attacks them for doing it. It is McConnell, with his extraordinary blockade tactic, who has functionally changed the rules of the game. He should be forced to do it in name.