Senate Republican Suicide A filibuster deal with Democrats over Gorsuch would be a judicial and political disaster.
https://www.wsj.com/articles/senate-republican-suicide-1490917483
House Republicans immolated themselves over health care last week, and now Democrats are hoping the Senate GOP will perform its own kamikaze turn over Supreme Court nominee Neil Gorsuch. If Republicans blink and tolerate Democratic filibusters of High Court nominees, they should hand over their majority to the Democrats now.
Minority Leader Chuck Schumer’s strategy is transparent: Stage-manage an unprecedented filibuster against Judge Gorsuch, and then portray Republicans as radicals if they change Senate rules to break it. The gambit is to coax at least three of the 52 GOP Senators to cut a deal with Democrats that hands the minority political leverage over President Trump’s judicial nominees.
Mr. Schumer and other Democrats are trying to lure those Republicans into a deal by preaching a false institutionalism that claims to be acting for the good of the Senate. They want to scare the GOP into believing that breaking a filibuster would somehow break the Senate as a deliberative body that requires 60 votes and bipartisan consensus to act.
But the real radical act is a Supreme Court filibuster. Mr. Schumer wants to use the filibuster to defeat Judge Gorsuch outright, or negotiate a deal that gives the judge a confirmation pass of 60 votes in return for a guarantee that GOP Senators won’t break a filibuster on future nominees during the Trump Presidency.
Either result would do great harm to the Senate’s advice and consent role under the Constitution, tilt the Supreme Court to the left, reward the most partisan voices in the Senate on the left and right, further inflame grassroots conservative outrage against political elites, and deal a grievous wound to the Republican Party. Other than that, a great day at the office.
Start with the fact that there has never been a partisan filibuster of a Supreme Court nominee. The elevation of Justice Abe Fortas to become Chief Justice in 1968 failed amid bipartisan opposition due to his policy collaboration with the White House while he was a Justice.
The one cloture vote to end debate on that nomination failed 45-43, well short of the 67 votes required at the time. Nineteen Democrats and 24 Republicans voted against cloture in what was the last year of Lyndon Johnson’s Presidency, and Fortas asked LBJ to withdraw his nomination.
Filibusters were mooted against William Rehnquist and Samuel Alito but never materialized. A cloture vote against Rehnquist failed in 1971, 52-42, but he was later confirmed 68-26. Justice Alito easily won a cloture vote and was confirmed 58-42. Republicans never even attempted to filibuster Bill Clinton or Barack Obama’s four nominees.
The real break from this tradition began in 2001-2002 when Democrats decided to filibuster George W. Bush’s appellate-court nominees, and this example is politically instructive. After the GOP retook the Senate, a rump group of Republicans and Democrats struck the Gang of 14 deal that agreed to confirm nominees except in “exceptional circumstances.”
But Democrats ended that deal when they regained power. In 2013 they unilaterally rewrote Senate rules to break the filibuster for appellate nominees so Mr. Obama could pack the D.C. Circuit Court of Appeals. Democrats would surely do the same for the Supreme Court the next time they control the White House and Senate, as Senator Tim Kaine explicitly promised to do if Hillary Clinton won the election.
A deal now with Democrats would create a double standard in which GOP nominees are subject to a 60-vote standard but future Democratic nominees aren’t. It would also deny other Senators their constitutional right to offer advice and consent by casting a vote on nominees. A filibuster essentially blocks a vote to confirm, though a nominee like Judge Gorsuch would receive more than 50 votes. He could be denied a seat on the Court on purely procedural grounds, something that has never happened.
If Judge Gorsuch is confirmed, the next opening could come as early as the end of the current Supreme Court term in June and could determine its direction for years. If Democrats know they can block any nominee with a filibuster, they can dictate that no one on Donald Trump’s campaign list of 21 potential nominees can be confirmed.
Democrats could guarantee that no one to the right of Justice Stephen Breyer can be confirmed. This would reward the furthest left Senators for their total resistance, which would in turn empower the most recalcitrant voices in the GOP caucus. Far from empowering moderates, a filibuster deal would reward the likes of Elizabeth Warren and Rand Paul.
This would betray the voters who elected Donald Trump and a GOP Senate in 2016. The Supreme Court wasn’t some political afterthought last year. It was central to the campaign and crucial in motivating millions of Americans to go to the polls. If you think GOP voters are angry now, imagine what they’ll be like if Republicans let Democrats block conservative judges. This would be Senate Republican suicide.
After the health-care fiasco, Republicans need to show Americans they can follow through on their governing promises. If the GOP doesn’t want to squander its Senate majority, it will stay united and confirm Neil Gorsuch, even if it means breaking an unprecedented Senate filibuster.
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