This week, the Senate Judiciary Committee held all its hearings for President Trump's nominee for the Supreme Court, Neil Gorsuch.
If confirmed, Gorsuch may be the most conservative Justice on the Court, "voting to limit gay rights, uphold restrictions on abortion and invalidate affirmative action programs," according to studies of his opinions as a judge on the 10th Circuit.
To become a Supreme Court justice, a person must go through 3 major steps: be nominated by the president, go through hearings and a vote in the Senate Judiciary Committee, and be confirmed by a vote in the full Senate. Gorsuch is in that second step. The Judiciary Committee is expected to vote on April 3rd and, given that there are 11 Republicans and 9 Democrats on the committee, will very likely send Gorsuch's nomination to the Senate floor for a full vote soon after.
Why is it important?
This single vacant seat on the Supreme Court is just the beginning. Since 1970, the average retirement age for Supreme Court Justices has been 79. And three Justices are 78 and older. President Trump may have the chance to reshape the Supreme Court. Neil Gorsuch is the first example of this power.
But one Senate rule makes the Gorsuch vote tricky—and deeply controversial. A piece of legislation or a confirmation only needs more than half of the Senate to pass (usually 51 Senators). But Senators are allowed to extend the debate before a vote indefinitely, unless two-thirds of the Senate (usually 60 Senators) votes to end it. The act of delaying a vote indefinitely in order to slow or stop it is called a filibuster.
In other words, you only need 51 votes for a Senate decision, but you need 60 votes to get to decide at all. There are 52 Republicans in the Senate. Gorsuch needs at least eight Democrats to break a filibuster.
But a filibuster is risky. If Democrats filibuster, Republican Senate Majority Leader Mitch McConnell can suspend the filibuster rule entirely. We call this the "nuclear option." The nuclear option causes a problem for both parties—both benefit from filibuster rules when they are a minority in the Senate, and both benefit from the way 60 votes requires the Senate to be a generally moderate, consensus-seeking body.
Should Democrats filibuster Neil Gorsuch's Supreme Court nomination?
Preventing a vote on Gorsuch by using the filibuster puts the power of the filibuster itself at risk. It opens up every piece of legislation to a 51-person vote, and Republicans have 52 Senators. That situation is much more dangerous than one more conservative on the Supreme Court.
Republicans have demonstrated that they are not afraid to use the nuclear option. Though it may cause problems for them in the future, when they are a minority in the Senate, those problems are not an immediate concern. Senate Leader Mitch McConnell has hinted he will suspend the filibuster, saying "Gorsuch will be confirmed; I just can't tell you exactly how that will happen, yet." And Republicans have shown that they are willing to establish their own Senate precedent, as they did by refusing President Obama's Supreme Court nominee, Merrick Garland, any hearings whatsoever. The idea that Republicans will shy away from the nuclear option ignores their recent history.
Gorsuch would replace Justice Scalia and would not significantly shift the ideology of the Court. However, some Republicans may be less willing to "go nuclear" when that ideological shift would be much greater—if one of the older liberal Justices, like Justice Ginsburg, were to retire for example. As Vox's Dylan Matthews writes, "because of the higher ideological stakes for the Court, this strategy bets that less conservative Senate Republicans such as Lisa Murkowski, Rob Portman, Cory Gardner, or Susan Collins might be less willing to go nuclear than they might be on Gorsuch’s behalf." This situation opens the door for a deal, in which Democrats keep the filibuster intact and allow Gorsuch through, while preserving their ability to sway future Supreme Court nominee decisions.
Preserving the Senate rule that allows the minority party to affect decision-making is worth Gorsuch on the Court.
An empty seat is better than Gorsuch. A divided court can do little, for good or bad, but a conservative majority can do much that's bad on issues from gay rights to abortion to health care. Democrats must filibuster this nomination.
From a Democrat's perspective, there's no point being afraid of a worse option; Gorsuch would be the most extreme conservative Justice on the Court on every issue imaginable. Worse still, some of President Trump's actions—like his executive order on Muslim immigration—will inevitably come before the Supreme Court. Gorsuch would significantly harm the Supreme Court's ability to check this president.
Some mistakenly suggest a deal, in which Democrats allow Gorsuch's confirmation and Senate Leader McConnell agrees not to change the filibuster rules. But the idea that Mitch McConnell, a man whose life's work has been to undermine Congress as an institution and obstruct good governance, would keep that promise is absurd. As Oregon Senator Jeff Merkley said, "we have to realize this is a losing strategy. That simply means Republicans can agree to change the rule on the next individual."
From a Republican's perspective, the nuclear option is not ideal. Their party has benefited significantly from filibuster rules in the past and would again in the future. This precedent puts that future at risk. If Republicans choose not to use the nuclear option, the Democrats' filibuster really would defeat Gorsuch's nomination.
Simply put, it is obviously worth risking the nuclear option to prevent another extreme conservative on the Court. On Thursday, Senate Minority Leader Chuck Schumer agreed, leading the way for Democrats to filibuster this Supreme Court nominee. The nuclear option will then be the Republicans' choice—and it's a dangerous one.
- The filibuster rule and the nuclear option
- "There is a legend of uncertain veracity that says George Washington and Thomas Jefferson came to agree that the Senate should serve as a "saucer" to the House’s "tea cup" — a vessel for cooling the hottest passions emanating from the House. Whether the specifics of the tale hold up, the idea that the Senate is the slower, more cautious half Congress has been the chamber’s reputation throughout its history. The Constitution delegates internal rule-setting to the Senate itself, and for much of its history, the chamber — unlike the House — did not implement a mechanism to maneuver around a member determined enough to block action by mounting a filibuster."
- Senate Minority Leader Chuck Schumer's comments on the filibuster
- "Senate Minority Leader Chuck Schumer stated in a Senate floor speech that Gorsuch "almost instinctively favors the powerful over the weak," and is "not a neutral legal mind but someone with a deep-seated conservative ideology.""
- Senate Majority Leader Mitch McConnell's comments on the nuclear option
- "While saying he hoped Gorsuch would get Democratic votes in the end, McConnell seemed ready to change Senate rules, if necessary, to confirm him with a simple majority rather than the 60 votes now required to move forward. "Gorsuch will be confirmed; I just can't tell you exactly how that will happen, yet," McConnell said."