Politico reports that “a group of Senate Democrats is beginning to explore trying to extract concessions from Republicans in return for allowing Supreme Court nominee Neil Gorsuch to be confirmed.” What concessions?
The deal Democrats would be most likely to pursue. . .would be to allow confirmation of Gorsuch in exchange for a commitment from Republicans not to kill the filibuster for a subsequent vacancy during President Donald Trump’s term. The next high court opening could alter the balance of the court, and some Democrats privately argue that fight will be far more consequential than the current one.
The problem, of course, is that Democrats can’t stop Judge Gorsuch from being confirmed. Therefore, it makes no sense to speak of them “allowing” his confirmation. All they can hope to “allow” is his confirmation without a filibuster and without the need to abolish that instrument via the “nuclear option.”
Thus, the Democrats are in serious trouble. A filibuster over Gorsuch would very likely lead to the nuclear option, thereby clearing the way for easy confirmation of President Trump’s next nominee, the fight over whom will be, as Politico says, far more consequential.
A filibuster would also place in jeopardy Red State Democrats facing reelection next year. If they back it, they may well be vulnerable to a Republican opponent, especially now that Gorsuch has done so well at his confirmation hearing. If they don’t back it, they might well be vulnerable to a primary challenge from the left.
In other words, the Gorsuch confirmation battle is breaking perfectly for the Republicans.
This means Democrats must be delusional to think they can make a deal, right? That’s what Leonard Leo, who advises President Trump on judicial nominations, says.
But a deal may not be out of the question. Republicans need 50 votes to do away with the filibuster. Given the quality of the current nominee, they should be able to get the 50 if necessary to confirm Gorsuch.
If, however, the Democrats offer a deal in which they eschew filibustering this time around, they can argue to squishy Republicans that the “nuclear option” isn’t necessary to confirm Gorsuch. All that’s necessary is an agreement to retain the filibuster for future use.
It’s a terrible argument from a GOP perspective because the Democrats would then have carte blanche to filibuster the next nominee, including a highly qualified conservative like Gorsuch. And the Democrats undoubtedly would exercise that option.
But Senate traditionalists in the GOP ranks have a fondness for the filibuster. Some might even be naive enough to think Democrats will permit Republicans to use it when, one day, the shoe is on the other foot.
So it’s conceivable that Democrats could lure moderates Susan Collins and Lisa Murkowski plus one or two “traditionalist” like Lindsey Graham into a “gang” reminiscent of the “Gang of 14” that struck a deal on judicial nominees when George W. Bush was president. The new gang would force the Democrats’ deal through.
Likely? No. Impossible? No.
NOTE: Steve has a similar take on this matter in the post below.