The Rushmore Report: Why the Gorsuch Filibuster Is Such a Bad Idea

Democratic Senate Leader Chuck Shumer (NY) has managed to enlist enough senators to mount a filibuster against the Neil Gorsuch nomination to the Supreme Court. This move belongs high on the list of all-time political blunders. In their effort to shoot down the Gorsuch nomination, Democrats have formed the perfect circular firing squad. This is an unforced error of historical proportions. Let’s review.

Here’s how we got here.

1. Harry Reid (D-NV) changed Senate rules.

In 2013, when Democrats controlled the Senate, Leader Harry Reid blew up the time-honored filibuster rules on lower court appointments. From 1948 until 2013, it took 60 senators to cut off debate and force a vote on court appointments. Reid changed all that, in order to get Obama-appointed judges through on a partisan vote. Democrats liked the new rule – at the time – because they controlled the Senate.

2. Republicans denied Obama’s nominee a hearing.

In March of 2016, President Obama nominated Merrick Garland to replace Antonin Scalia on the Supreme Court. Republicans refused to hold hearings for two reasons. Their stated reason was that no Supreme Court nominee had ever been considered during an election year. Republicans said the next president should make this appointment. The other reason for their opposition – unstated and often denied – was purely political. They wanted the get a conservative as Scalia’s replacement. And while Democrats have attacked this decision, it is clear that they would have done the same thing if circumstances were reversed. Joe Biden even said so.

3. Trump nominated a really good candidate.

Democrats have been unable to offer any real reason to oppose the Gorsuch nomination. His credentials are beyond reproach.

4. Democrats have decided to filibuster the nomination.

For the first time in American history, a Supreme Court nomination will be filibustered for purely partisan reasons. For Democrats, this is payback for the treatment Republicans gave Judge Garland.

5. Senate Majority Leader Mitch McConnell (R-KY) will invoke the “nuclear option.”

Senator Schumer said – amazingly – that he will oppose “any nominee President Trump brings before the Senate.” By “oppose,” he means filibuster. That leaves McConnell two options: either change the filibuster rule or agree that for the next four to eight years we will not add anyone to the Supreme Court under any circumstance. Schumer’s game of chicken has given Republicans no choice. The only way they can get a nominee confirmed is by changing Senate rules to allow for a simple majority vote.

Here’s why this is such a dumb move by Democrats.

Judge Gorsuch is, by all accounts, a mainstream judge. He has voted with the majority on 97 percent of his lower court rulings. He has never ruled on abortion or other issues that would tag him far right. In short, he is the most acceptable nominee Democrats will ever get from Mr. Trump.

By forcing McConnell to make the rule change, when one of the octogenarian liberal justices (Ginsburg, Breyer) retires, Trump will nominate a replacement who is acceptable only to Republicans. By no longer needing Democratic votes, the next nominee will likely be more conservative.

On the other hand, had the Democrats not threatened to filibuster, Republicans would have not changed the rules. Had that happened, Republicans would have looked really bad changing the rules for a future nominee.

Said simply, Democrats picked the wrong fight. They played all their cards, knowing they would lose anyway. Now they are out of moves.

I’m an old chess player. What Senator Schumer is doing this week is akin to a chess player moving his queen to a position to be captured, when it accomplished nothing in return. Can a chess player still win without his queen? Yes, but it suddenly gets a whole lot harder.

So why did Schumer and the Democrats do this? It’s simple. They are placating their base. And that makes sense for the most nearsighted of politicians. But give Trump one or two more far-right nominations, and the Democrats will look back and ask, “What were we thinking?”

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