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.