Democratic Senators absolutely need to filibuster Gorsuch, and to use every other available procedural move to stall the confirmation before it even gets to a cloture vote. They should do so because the seat was stolen and because Gorsuch is a lousy choice if you’re an actual human being.
Some spineless Democrats reportedly counseled Senate Democrats to cave and let this one through, because it won’t change the composition of the court from what it was before Scalia’s death (4 liberals, 1 conservative swing vote, 4 right-wing judicial activists), and the Republicans might nuke the filibuster if Democrats use it. That’s exactly backwards. Republicans have ample reason not to nuke the filibuster over this seat. That won’t be true of the next one, so this is the fight that counts.
It will require 51 votes (or 50 plus Pence) to eliminate the filibuster. Assuming Democrats hold firm, Republicans can afford only three defections on that vote. As of November, Republican Senators Tillis, Graham, Flake, and Hatch all expressed reluctance to get rid of the SCOTUS filibuster.
The filibuster may be a weapon one’s opponent can disarm at will, but it’s a weapon both sides might want to keep. Especially the side that’s “been in the minority a lot more than we’ve been in the majority.” At least some Republicans must be aware that throwing away the filibuster now could bite them in the ass after 2020 if a two-term Democratic president with a Democratic Senate winds up replacing Ginsberg (current life expectancy 7.9 years, according to Social Security actuarial tables), Breyer (life expectancy 9.7 years), Kennedy (8.5 years), and perhaps Thomas (life expectancy 16.4 years, but he won’t necessarily make it that long). Without knowing when any of these justices will retire or die, eliminating the filibuster now could give a Democratic president carte blanche to pack the court with three or four young liberals beginning in 2021.
In addition, every Republican in the Senate remembers 2006. The Senate map in 2018 is hostile to Democrats. But every incumbent red state Democrat facing re-election in 2018 occupies a seat that he or she won in 2012, when Republicans were fired up to get rid of Obama. These are Democrats that can win in red states. The 2018 map is the same map that we had in 2006 (subject to demographic shifts) when, burdened by a President with a 38% approval rating in early November 2006, the Republicans lost both the House and Senate. Trump’s approval rating, according to the Huffpost Pollster composite, is currently 43%. (And that’s during his “honeymoon” period; it only gets worse for him from here.) Republicans have to know there’s a real chance he’ll be polling in the 20s by November 2018 (if he’s still in office), and every Republican in an even faintly purplish state will be at risk.
If Democrats hold all their seats and pick up just three more in 2018, they can take over the Senate. Arizona, Nevada and possibly Texas are realistic possibilities, especially if Team Red is fighting an orange headwind. And once Democrats control the Senate, they can simply follow the McConnell rule and deny a hearing to any Trump nominee (or Pence, if Trump has been removed from office by then), no matter how many Justices die after January 1, 2019. Some Republicans may be reluctant to bet the farm on the chance of one Justice dying or retiring within the next 23 months.
The point is, right now Republicans will need to decide if it’s worth throwing away the filibuster to preserve the status quo. If three think it isn’t, Democrats can block Gorsuch indefinitely. If Democrats have any chance of winning the SCOTUS fight, it’s this seat. Not the next one.
Of course, endless obstruction could get the Republicans to pull the trigger anyway. But if Democratic obstruction focuses heavily on this nominee and this seat, Democrats might be able to eventually cut a deal to avoid that. If at least three Republicans want to keep the filibuster for their own use in the future, a deal could give them political cover to do so. A potential deal doesn’t even need to go through, just eat up time. As long as there’s the realistic possibility of making some kind of deal with pro-filibuster Republicans, a handful of Democrats could drag out the nomination through months of negotiations even if they ultimately fail to deliver. “Merrick Garland” is the obvious demand, but Democrats could offer to settle for a centrist. Another possibility: a handful of Democrats offer to get out of the way for Gorsuch after Trump renominates all of Obama’s other unconfirmed judicial nominations and they have all been confirmed by the Senate.
(Yet another possible deal: Democrats hold firm that Trump does not get a SCOTUS appointment, period. But if enough Republicans get on board to impeach Trump and remove him from office, Democrats agree to not filibuster an acceptable Pence nominee for the Garland seat — that is, another Kennedy or O’Connor, who were both good enough for Saint Ronnie. Trump has no friends, nobody in Congress owes him a thing, right now he’s hurting the hell out of the party, and support for his impeachment is already growing. Depending on how many Republicans in Congress (a) actually hate Trump, (b) would love an excuse to get rid of him, and (c) see a path through their next primary if they do so, I could see an impeachment deal becoming a possibility a few months down the line.)
The next seat that opens up … well, that will be a different story. If another Justice retires or dies while Republicans still control the Senate, the next seat could lock in a right-wing judicial activist majority on the court for a generation, and the Republicans will blow up the filibuster to make that happen. Even the reluctant ones will go along with it; at that point, Republicans won’t need the SCOTUS filibuster for years to come, maybe decades if a third seat opens. But until that happens, it’s possible that hold-out Republicans might take a “wait and see” approach and let the Gorsuch nomination drag out. If another seat does open up, they’ll likely decide gaining two seats would be worth killing the SCOTUS filibuster.
That’s why Democrats need to fight this nomination right to the bitter end, no matter how it turns out, and only cut a deal if it’s a really good one. This is the only SCOTUS fight that will count for the foreseeable future.