Why Senate Democrats Have to Filibuster Judge Gorsuch

Let's get three uncontroversial propositions out of the way at the outset.  First, Judge Neil Gorsuch is unquestionably qualified to serve as a Justice on the Supreme Court of the United States.  Second, so is Judge Merrick Garland.  Third, the Senate's refusal to hold hearings and vote on Judge Garland was unprecedented in modern times (by which I mean it has not happened since the mid 19th century).  

Yes, it is possible to draw distinctions between, say, President Reagan's nomination of Anthony Kennedy to the Court and President Obama's nomination of Garland, because Reagan nominated Kennedy in November 1987, which was the calendar year prior to the election, and Obama nominated Garland in March 2016, which was the calendar year of the election.  But if you think that distinction makes a difference, then you might as well take your confirmation bias elsewhere and stop reading now.  

As Amy Howe catalogued over at SCOTUSblog, at least six Supreme Court Justices have been nominated and confirmed in an election year.  Yes, it is true that President Johnson's nomination of Henry Stanbery was not acted on by the Senate -- but that was Andrew Johnson, not Lyndon.  So one must go back to 1866 to find a comparable example to the McConnell-led Senate's treatment of Judge Garland. 

For Democrats to vote on Judge Gorsuch is to concede the legitimacy of the process that denied a hearing and vote to Judge Garland.  They ought to filibuster, not because Gorsuch is unqualified, but because his nomination is illegitimate.  

Several reasons have been offered for not mounting a filibuster.  The first is that twelve Senate Democrats are up for reelection in states that either went or almost went for Donald Trump.   The second is that, with only 48 Senate seats, the Democrats are vulnerable to the so-called nuclear option, by which Republicans could, by simple majority vote, eliminate the filibuster.  

It's hard to know how to respond to the first concern, other than to say that voting to confirm Supreme Court justices is among the most serious responsibilities a US Senator has, so if a Senator makes even that duty subservient to getting reelected then she or he should be the subject of a chapter in a book entitled Profiles in Cowardice.  Put more colloquially, sometimes doing the right thing runs a risk you will get your ass handed to you.  If a Democratic Senator is not willing to do the right thing when the stakes are highest, why should the Democrats want that person to represent them?

If the worry about reelection reflects misbegotten priorities, the concern over the filibuster reflects too simplistic an analysis.  Let's do a little game theory analysis by articulating the four scenarios facing the Senate and seeing where they lead:

Sc1:  If the Democrats do not filibuster, Gorsuch will be confirmed in a straight up or down vote. 

Sc2:  The Democrats mount a filibuster, but the Republicans  eventually pick up eight Democratic votes, and thereby reach the 60 needed for cloture, which will then lead to an up or down vote for Gorsuch, and confirmation.

Sc3:  The Democrats mount a filibuster, and the Republicans do not obtain the 60 votes needed for cloture -- i.e., the filibuster holds -- and the Gorsuch nomination will be defeated.  

Sc4:  The Democrats mount a filibuster, and the Republicans do not obtain the 60 votes needed for cloture -- i.e., the filibuster holds -- but the Republicans then resort to the nuclear option and do away with the filibuster, leading to an up or down vote for Gorsuch, and confirmation.    

Three scenarios lead to confirmation, so the question is whether Sc1 is preferable to Sc2 and Sc4.  It is hard to identify any reason why Sc2 is worse than Sc1.  In both cases, Gorsuch is confirmed; in both cases, the filibuster remains intact.  

Hence, the question for Democrats is whether there is something distinctively worrisome about Sc4.  Put another way, should the Democrats be so fearful of the nuclear option that they simply acquiesce to the unprecedented action of the last Senate to deny a hearing and vote to Judge Garland?  Perhaps there's an argument I am unaware of, but the filibuster-phobia I've seen has been tied either to concern about the electoral consequences on the red-state Democratic Senators, or the worry that if the Republicans trigger the nuclear option, the Democrats will have squandered their most potent weapon.  

The latter concern reminds me of back-country hikers who get lost and die of thirst even though they have water in their camel packs because they are saving it.  At some point, you have to use the resource you have.  There is always a risk you will use it up, and wish later you still had some left, but the opposite risk is just as probable: that you ration and lose the opportunity to use your most effective weapon in the most compelling circumstance.  

It is probably true there are many potential nominees who would prove more anathema to liberals and progressives than Judge Gorsuch.  But that possibility does not justify eschewing Sc4, unless there is a good reason to believe that Sc4 would not be one of the scenarios facing Senate Democrats when that hypothetical future nomination occurs.  If the Republicans decide to blow up the filibuster now, what reason is there to think they would not also decide to blow it up later?  Unless that question can be answered persuasively, the reservation over using the filibuster to oppose Gorsuch turns out to be a reservation over using the filibuster, period.  

I should confess that part of me thinks blowing up the filibuster might not be a bad idea anyway.  It is a profoundly anti-democratic device that massively distorts our political and moral commitment to majoritarianism, and it has been used to do evil as much as to do good.  Besides, Senate majorities are transient things, and a decision by Republicans to blow it up today will one day benefit the Democrats.  The Republicans have been playing the long game for many years, even since before Mitch McConnell announced less than two years into President Obama's first term that the Republicans' top priority was to deny him a second term.  It's long since time for the Democrats to play the same game. 

What it all comes down to is this:  The Republican Party stole a Supreme Court seat that was President Obama's to fill.  A filibuster represents a refusal to acquiesce to that instance of obstructionism.  As a strategic matter, there is no reason not to use it.  And as a moral matter, there is no excuse not to.