By nominating Judge Neil Gorsuch rather than Judge William Pryor, the original frontrunner, I suspect that President Trump hopes to avoid a successful filibuster, and thus get his man confirmed without resort to the “nuclear option.” I’m not saying that this was the decisive consideration. It may be that Trump simply preferred Gorsuch — I don’t know. But it seems likely that Team Trump viewed the prospect of confirming Gorsuch without having to nuke the filibuster as a plus.
Trump alluded to this prospect in his announcement of Gorsuch’s nomination. He stated, pointedly, that his nominee is someone both Republicans and Democrats should be able to support, and cited Gorsuch’s confirmation to the court of appeals by a unanimous vote in 2006.
If Trump wants a nominee who can be confirmed without abolishing the filibuster, this desire may stem in whole or in part from the wishes of Mitch McConnell. The Majority Leader believes in upholding Senate traditions. The right to filibuster Supreme Court nominees is one of the traditions McConnell would like to preserve. He has made this clear.
But can Gorsuch be confirmed without nuking the filibuster? The fact that he was confirmed unanimously to the court of appeals is a good talking point, but unlikely to sway Democrats. They will point out that Gorsuch’s record as a judge — the record that has conservatives so excited about him — did not exist when they voted to confirm him in 2006. They will also note that Judge Merrick Garland was confirmed to the court of appeals overwhelmingly (though not close to unanimously), yet couldn’t even get a hearing on his nomination to the Supreme Court.
Gorsuch’s conservative record, coupled with the undeniable importance of the Supreme Court, will provide Democrats with a rational basis for voting en masse against Gorsuch. In any event, the Democrats no longer require a rational basis for obstructing. The demands of the party’s base are sufficient — and increasingly necessary — reason to vote “no.”
In sum, it is likely to be very difficult to break a filibuster of the Gorsuch nomination. Doing so requires eight Senate Dems to break ranks, and those eight votes will be hard to come by.
Does this mean that there is no advantage, from a confirmation standpoint, in picking Gorsuch instead of Pryor? Not really. First, the chance of breaking a filibuster is somewhat higher than it would have been with Pryor.
Second, and perhaps more importantly, nominating Gorsuch puts Trump in a better position in relation to Mitch McConnell and other Senate “bulls.” He can now say to the Majority Leader, and to members like John McCain and Lindsey Graham who like the filibuster:
Look, I didn’t send up a controversial guy like Pryor, who had lots of trouble being confirmed to the court of appeals. I sent up a guy who was confirmed unanimously. If the Dems won’t confirm him, they won’t confirm any conservative. The real option is to get rid of the filibuster.
If it comes to this, I suspect that McConnell will be willing to go nuclear and will get the votes he needs.
Meanwhile, Democrats should understand that invocation by Republicans of the nuclear option to confirm Judge Gorsuch might hurt the Dems when Trump makes his next nomination (if he gets that opportunity). It is the next nominee, not Judge Gorsuch, who could give conservatives five reliable votes on the Supreme Court. Gorsuch just gets them back to four.
If the filibuster does not survive the Gorsuch confirmation fight, Trump will likely feel free to send up as conservative a nominee as he pleases next time, assuming the GOP still controls the Senate. If the filibuster is still around, he might feel more constrained.
So the battle to confirm Judge Gorsuch figures to be a fascinating game of chess. It will be nerve-racking and infuriating at times. But barring a very unexpected twist, Gorsuch is likely to be confirmed one way or the other.