The futility of filibustering Neil Gorsuch

To filibuster or not to filibuster — that is the question facing Democrats over the next couple of weeks, as Neil Gorsuch's nomination prepares to move out of the Senate Judiciary Committee.

The answer should be obvious: Don't filibuster.

While it may be satisfying for Democrats justifiably furious about the way former President Obama's nominee to the court was treated by Republicans last year, a Gorsuch filibuster would likely backfire, depriving Democrats of the leverage they may soon need to exert influence over the next, and far more crucial, Supreme Court nomination.

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This doesn't mean that Democrats need to support Gorsuch's nomination. If they consider him too ideologically conservative, they're well within their rights to cast a vote against him on the Senate floor. But they shouldn't use a filibuster to block his nomination from receiving an up-or-down vote in the first place.

The reason has nothing to do with upholding Senate traditions or taking a stand in favor of bipartisan collegiality. Republicans destroyed the last semblance of those when Senate Majority Leader Mitch McConnell (R-Ky.) pronounced mere minutes after the death of Justice Antonin Scalia last year that no nominee to replace him would receive a vote prior to the election nine months later. McConnell and his fellow Republicans claimed to be acting on principle in refusing to act on Obama's eventual nominee (Merrick Garland) in an election year, but it was a fig leaf covering over an act of blatant, unprecedented obstructionism.

If Democrats had a way to exert power in an act of equal-and-opposite retaliation against Republicans (as they would have if they'd managed to win control of the Senate last November), they'd be justified in doing so. That would be very bad for the Supreme Court, keeping it hobbled with only eight justices. But it might have the salutary effect of teaching Republicans a lesson and therefore making possible a compromise down the road. But Democrats have no such power.

The only thing that gives a filibustering senator the power to prevent a floor vote is a Senate rule requiring 60 votes to end debate. (Republicans hold only 52 seats and so would need at least eight Democrats to break ranks in order to clear that hurdle.) But this rule can itself be changed with a simple majority — and Democrats opted to take this so-called "nuclear option" back in November 2013, when they eliminated the filibuster for other kinds of nominations. This created a precedent that McConnell claims he will follow if Democrats attempt to block Gorsuch: He and his fellow Republicans will simply change the rule, allowing a simple majority to end debate for Supreme Court nominations. An up-or-down floor vote would then follow.

This prospect is what brings Democrats to their dilemma: Should they filibuster Gorsuch and risk having this counter-majoritarian power taken away from them for good?

The answer is no — because Democrats need to hold onto this meager power for the next opening on the court, when the stakes could be far, far higher for liberals.

In our highly polarized moment, not all high court vacancies are created equal. The bench is sharply divided along ideological lines, with the right holding two staunchly conservative seats (Justices Thomas and Alito) and one mostly conservative seat (Chief Justice Roberts, who helped the right by backing the controversial Citizens United decision on campaign finance, but who also infuriated the right by refusing to rule against ObamaCare in King v. Burwell). Democrats, meanwhile, have four consistently liberal seats (held by Justices Ginsburg, Breyer, Sotomayor, and Kagan). Justice Kennedy is a swing vote who sides with the liberals on hot-button social issues and with conservatives in many other areas of the law.

The reason why McConnell took such an extreme position against Obama's nominee to succeed Scalia is that Scalia held the right's third staunchly conservative seat on the court. Allowing an Obama nominee to be confirmed (even one as moderate as Garland) would have moved this conservative seat significantly to the left, flipping the ideological balance of the court on many issues. The stakes for Republicans were thus enormous — and with a presidential election less than a year away, they decided to wait in hope for a Republican president who might allow them to hold onto "their" seat. This highly cynical brinksmanship paid off.

This is a horrible way to staff the branch of government that is supposed to strive for maximal political independence, but it's nonetheless our reality — and one that matters to liberals just as much as it does to conservatives.

Whereas allowing Gorsuch to succeed Scalia confronts Democrats with an even conservative-for-conservative swap, the next death or retirement from the court may well prove far more threatening. Liberal Justice Ginsburg is an 84-year-old two-time cancer survivor. The next oldest justice is 80-year-old swing-vote Justice Kennedy — a man who has contributed crucially to landmark (but still-contested) decisions on abortion (Casey) and same-sex marriage (Obergefell).

This means it's likely that the next Supreme Court vacancy will be just as high stakes for Democrats as the current one is for Republicans. That is when Democrats will need the filibuster.

But wait — won't Republicans simply vote to eliminate the filibuster whenever Democrats attempt to use it against a Supreme Court nominee, whether it's now or during a future confirmation battle? Maybe. We can't be sure. But I suspect there's a greater likelihood of McConnell's parliamentary gambit prevailing when it's "their" seat at stake, which is right now. All it would take is two Republican senators to refrain from supporting the nuclear option for it to fail — and that's more likely to happen at a moment when partisan imperatives are somewhat less heightened on the right, allowing considerations of institutional tradition and collegiality to prevail.

All we can know for sure is that if McConnell goes nuclear now, Democrats will have no leverage at all to influence any Supreme Court nominations that come down the pike during the remainder of Trump's presidency.

As long as Republicans hold on to their majority in the Senate, that is. And that points to the one (exceedingly high-risk) case for forcing McConnell's hand now. Filibustering Gorsuch might be a pointless exercise when it comes to keeping him off the court, but it would have the advantage of giving angry Democratic activists something they desperately want: an opportunity to lash out in fury at Republicans. If giving these activists what they want convinces them to work harder for Democratic victory in the 2018 midterm elections, then there might be some value in the otherwise futile gesture.

But I'm unconvinced. The chances of Democrats retaking the Senate in 2018 are small, and the stakes when it comes to the high court are enormous. Strategically speaking, the smart path is obvious: Let Gorsuch get a vote and return to fight another day, when it really counts.