President Donald Trump has nominated Judge Neil Gorsuch, of the Tenth Circuit Court of Appeals, to the Supreme Court. There have been conflicting reports about how Democrats will respond. Some have suggested that Senate Democrats will keep their powder dry for a more pivotal appointment, while others have claimed that they are determined to filibuster the nomination. The latter is the more likely scenario; Minority Leader Chuck Schumer on Tuesday night said the Senate “must insist upon 60 votes for any Supreme Court nominee, a bar that was met by each of President Obama’s nominees.”
If the question is what Senate Democrats should do, though, there is little question: Just say no. If Senate Republicans want Gorsuch, they should have to eliminate the filibuster for Supreme Court nominations. There are compelling reasons, both general and specific to this nominee, why Senate Democrats should go to the mat.
The first, most obvious reason was that this Supreme Court seat was essentially stolen. After the death of Justice Antonin Scalia, Senate Republicans created a new precedent holding that a president could not fill a vacancy with nearly a year remaining in a term. The people, the theory of Majority Leader Mitch McConnell and his colleagues went, should be allowed to decide.
This new precedent is intolerable on a number of levels, not least of which is that the people decided when they elected Barack Obama to a second term. But it becomes pure gall when you consider that Republicans in 2016 benefited twice over from some of the least democratic features of the American system—first, getting a narrow majority in a grossly malapportioned Senate, and then being awarded the presidency by the Electoral College despite losing the popular vote by nearly three million ballots.
It was within the formal powers of the Senate to preemptively reject any Obama nominee in 2016, and Trump is formally entitled to the presidency and its nomination powers. But Democrats are certainly under no obligation to pretend that his presidency or the Supreme Court vacancy he has to fill are in any other sense legitimate. It is true that the filibuster of a Supreme Court nomination is highly unusual—it has happened only once before, when LBJ’s nomination of Abe Fortas to replace departing Chief Justice Earl Warren was filibustered (ultimately handing Richard Nixon two Supreme Court vacancies when Fortas was later forced to resign). But these are highly atypical circumstances that call for an unusual reaction. Any Trump nomination that wasn’t Merrick Garland should have been preemptively filibustered.
There is a practical objection to a filibuster: namely, that the Democrats should save their ammunition for a future battle. Gorsuch is a disastrous appointment from a liberal perspective, but Justice Anthony Kennedy will remain the median vote on the Court, so this appointment just restores the status quo ante. Shouldn’t the Democrats keep their powder dry for Trump’s second nomination?
No. The logic soon collapses on itself. Given the stakes of replacing the median vote on the Court, Senate Republicans would not allow Democrats to filibuster any nominee. Schumer’s predecessor Harry Reid—correctly—eliminated the filibuster for lower court and executive branch appointments, and given the way gridlock has only become more entrenched, the filibuster for the Supreme Court is equally doomed. So Democrats might as well use it now. They almost certainly can’t stop Gorsuch, but they can draw attention to how Republicans stole Obama’s Supreme Court seat and used it to mobilize voters in 2018 and 2020.
There is another good reason to filibuster Gorsuch: His jurisprudence will be awful. His frequent invocations of Scalia in his speech on Tuesday were no accident. He will be a very reliable Republican vote—opposed to Roe v. Wade, hostile to the rights of employees and racial minorities, willing to uphold restrictions on the right to vote, and construing the powers of the federal government too narrowly. If he differs from Scalia, it will likely be that he lacks Scalia’s libertarian streak on civil liberties. Democrats should oppose him because he represents an awful, neoconfederate view of the Constitution.
Gorsuch is a bad choice to fill a vacancy that should never have been Trump’s to fill in the first place. Democrats probably can’t prevent him from being on the Court, but they should make his nomination as difficult as possible. McConnell’s Supreme Court blockade played a significant role in Trump’s upset win, and Senate Democrats should act to help liberal voters adopt a similar focus on the Court in 2018 and 2020.