I have been skeptical that the Democrats will force Republicans to invoke the Reid rule to end the filibuster of Supreme Court nominees as as the price of confirming Judge Gorsuch. I’m out of the prediction business, but every day it looks more probable that the Democrats may just do it. Late yesterday afternoon, for example, Elana Schor reported that “Gorsuch needs a straight flush to beat filibuster.”
From the perspective of rational leftist calculation, the confirmation of Neil Gorsuch should not be the hill on which they choose to make their stand. Judge Gorsuch’s confirmation would leave the Court more or less in equipoise, where it was when Justice Scalia died. The confirmation of a conservative justice to replace Justices Kennedy, in the middle, or Justices Ginsburg, Breyer, Sotomayor and Kagan on the left seems is a more logical place to make a stand. The left should want the filibuster in place to complicate the replacement of one of these justices by a President Trump at a later date if it comes to that.
I assume the Republicans will invoke the Reid rule and do away with the filibuster (Supreme Court edition) if the Democrats put them to it. I’m not entirely sure the assumption is sound, but it should be, and Ed Whelan has been egging the Democrats on via his Twitter feed. Ed is well-informed in these matters; he wouldn’t be doing the egging if he weren’t confident of a good result from the conservative perspective.
Republicans have never foreclosed confirmation of a Supreme Court nominee on a partisan filibuster. In the waning days of the Johnson administration, 24 Republicans were joined by 19 Democrats in the filibuster of Johnson crony Abe Fortas to move from Associate Justice to Chief Justice. (More here.). If I may borrow the form of legal citation for this post, see Whelan infra. Even though the circumstances are not comparable here, the filibuster of Fortas was something other than a partisan crusade.
Fortas filibuster was bipartisan: 24 Rs and 19 Dems voted against cloture. (Only 45 yes votes. Not clear Fortas even had majority support. https://t.co/pjjRaWZwEG
— Ed Whelan (@EdWhelanEPPC) March 29, 2017
Looking back at recent history, Justices Sotomayor and Kagan were confirmed by lopsided margins including the votes of many Republican senators, and, to say the least, it’s not because they were more qualified than Judge Gorsuch. Writing off the top of my head, I think it’s because Republicans have not found the use of the filibuster against a Supreme Court nominee to be respectable. Indeed, I think this was the common understanding as recently as the confirmation of Justice Thomas.
As a comic sidebar to this inquiry, note the Star Tribune editorial supporting the confirmation of Judge Gorsuch through gritted teeth. I think the Star Tribune is useful here in serving as an exhibit demonstrating political rationality from the perspective of the left.
The Star Tribune overlooks the Republicans’ forbearance from filibustering Democratic Supreme Court nominees on a partisan basis. The editorial simply asserts that Democrats have the right and that the pendulum might swing back against Republican control of the Senate. In my view, lacking the relevant history, this analysis is simple-minded. Moreover, if Republicans declined to kill the filibuster and instead let Gorsuch go down, it would kill the support of core supporters like, well, me. Republicans too can die on Mount Gorsuch.
Professor John McGinnis hypothesizes on other grounds than anything suggested above that the Democrats’ filibuster is rational. I think it must be rational on some ground, although I don’t buy the one conjured by Professor McGinnis. Nevertheless, you have to explore the crevices of left-wing partisanship like Professor McGinnis to come up with a different conclusion. And in any event, I join Ed Whelan in hoping the Democrats put the Republicans to it.
UPDATE: I missed Guy Benson’s assessment yesterday in the Townhall column “GOP faces crucial test.”. Damon Linker looks at the question from the other side in “The futility of filibustering Neil Gorsuch.”