The Neil Gorsuch nomination puts Senate Democrats in a bind. If they try to oppose his appointment by filibuster, Republicans can respond by eliminating the 60-vote threshold required for Supreme Court candidates—and then whacking the 11 Democrats who represent red states (10 of whom are up re-election next year) for corrosive partisanship. If they don’t filibuster, many in the progressive “Resistance” will accuse them of being patsies, sapping grassroots energy for the 2018 midterms or even igniting Tea Party-style primary challenges.
But it’s actually not that complicated. Stopping Gorsuch is a massive longshot. Even so, Democrats have every reason to fight the nomination to the hilt, filibuster be damned. And there’s even a way to do it that could bolster the standing of vulnerable red state Democrats who fear being tarred as far left partisans.
The argument against filibuster rests on the fear that Republicans will employ the “nuclear option” in response, changing Senate rules by a simple majority—over the objection of the Senate parliamentarian—to strip the minority party of its ability to filibuster Supreme Court nominees. Democrats already went nuclear in 2013 to terminate Republican filibusters of President Barack Obama’s lower court nominees and executive branch appointments, and President Donald Trump is urging Senate Majority Leader Mitch McConnell to “go nuclear” this time if necessary, so it won’t feel all that explosive for Republicans to respond in kind.
And if Republicans do respond in kind, certain nervous Democratic senators fear they will be deprived of the filibuster for an even bigger Supreme Court battle: if Trump gets the opportunity to replace a liberal justice like Ruth Bader Ginsberg or Stephen Breyer, or the lone swing vote on the court Justice Anthony Kennedy.
Such logic collapses on itself. If the operating assumption is that waging a filibuster means losing the filibuster, then the filibuster is already lost. Just look at the way two scenarios will play out. One: Filibuster Gorsuch, lose the filibuster, Gorsuch is confirmed and the next nominee is confirmed. Two: Confirm Gorsuch, filibuster the next conservative nominee, lose the filibuster and the next nominee is confirmed. The events take place in a different order, but the results are the same.