It is a foregone conclusion Neil Gorusch will pass out of the Senate Judiciary Committee with flying colors. Few, if any Democrats will vote yes while all Republicans will. Democrats know in a battle on the Senate floor they could never peel off three Republicans to oppose him. Hence, they are now turning to the filibuster and using the 60 vote threshold for closure to block Gorusch.
The Democratic base and many younger party members are livid over Republican’s refusal to even have a hearing for Merrick Garland. To the party base, Trump is the modern day version of Hitler and they want their party to oppose him at every turn. Already, the base is congratulating itself over the failure of healthcare (never-mind it was Republicans that sunk their own bill).
It was younger Democrats in 2013 that fueled their party elders efforts to eliminate the filibuster for lower court judicial nominees. Now, Democrats, fueled again by younger members lack of understanding the give and take in the chamber and their base’s rage seem willing to push Republicans to do the same.
The question has to be asked though whether Democrats are really willing to fight this battle now? Is Gorusch worth forcing a showdown over the nuclear option? Neil Gorusch is an impeccable judge who is not the perfect conservative. Furthermore, his seating on the court would not change the ideological make-up of the court. It would essentially remain 4-4-1 or 5-4 depending on the issue and how you look at it.
Chuck Schumer, who was just reelected to a fourth term should understand quick decisions made for partisan gain often come back to bite you. But, he is being driven to filibuster due to his base. Still, for a consummate politician, Schumer should know better. After-all, he was Harry Reid’s deputy when Reid made the ill-fated decision to eliminate the filibuster on lower court positions. Now, Republicans can reshape the lower courts for decades and Democrats cannot do a thing about it except delay the inevitable.
Older Democrats have expressed discomfort with the course their party seems intent on taking with Gorusch. Patrick Leahy said he was uncomfortable with forcing Republicans to eliminate the filibuster. He failed to say whether he would or would not filibuster Gorusch. Then, you have more moderate members like Mark Warner and Gorusch’s home state Democratic Senator, Michael Bennett. Then we come to the 10 Democrats up for reelection in states Trump won.
Some Democrats, worried about their reelection in traditional swing states like Florida’s Bill Nelson have inevitably tacked left to save their bacon. Ohio’s Sherrod Brown is interesting because he has jumped on board with the filibuster in a reddening state Trump carried by eight points. But, the real focus is on the five Democrats sitting in ruby red, Trump country.
Heidi Heidikamp, Claire McCaskill, Jon Tester, Joe Manchin and Joe Donnelly all sit in red states. Unlike their Democratic counterparts in closer states Trump won they don’t have much of a base of liberal support to draw from. That’s probably why on Thursday Manchin and Heidikamp came out in support of Gorusch. In their case, appealing to moderates and conservatives by stopping a filibuster of Gorusch might be in their best interests. Not that liberals across the country will forget it. Primary challenges are always a possibility.
But again, are Democrats really comfortable with eliminating one of the last obstacles to majority rule? The courts have become more and more politicized meaning the independence of judges is less certain. For example, all the judges that have blocked Trump’s travel bans were put in place by Democratic Presidents. Do Democrats want to give Republicans an excuse to make it easier for Trump to replace a retiring liberal justice?
The genie is already out of the bottle on lower court judges. Democrats at the time said it would allow them to reshape the judiciary for decades. Instead, after it was done, Harry Reid held off on many appointments to protect vulnerable incumbents. They still lost. Republicans, predictably, refused to move on Obama nominees (including Garland) and as a result Trump stands to make the courts the most conservative or populist in history.
In short, if Democrats are really willing to go this far they should also be willing to suffer the consequences. If Democrats force this showdown and don’t blink they will be giving the GOP an excuse to reshape the Supreme Court for years to come.