Filibustering Gorsuch is a bad idea
© Greg Nash

A filibuster of Judge Gorsuch’s nomination to the Supreme Court is a bad idea that would be unlikely to succeed and could have many unintended adverse effects.

If the Democrats try to filibuster the nomination, they can lose in multiple ways. To start, they will place the many Democratic Senators who must stand for reelection in 2018 in states that voted for President Trump in 2016 in a no win situation. If they abandon the filibuster, it will fail and they will lose the support of their base. If they join the filibuster, they risk losing as a result of angering the Trump voters.

Either way, the filibuster would risk causing the loss of even more Democratic Senate seats in 2018. Even if the Democrats can maintain the filibuster, they are unlikely to block the Gorsuch appointment. The Republicans would change the voting rules rather than suffer that kind of defeat.

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When President Obama was having problems getting his nominees confirmed, the then-Democratic Senate changed the voting rules to require only 51 votes, instead of 60 votes, to end debate on the decision to confirm a nominee to be an agency official or to be a judge. That rule change eliminated the possibility of a filibuster in the contexts of nominees to head agencies or to be judges.

 

With the rules changed, President Obama was able to get several of his nominees for the D.C. Circuit confirmed, thereby enabling the Democrats to get a majority of the judges on the second most important court in the country. Of course, that rule change is now hurting the Democrats. It has already made it easier for President Trump to get the vast majority of his nominees for cabinet positions confirmed. It will also make it easier for him to get his nominees for judgeships confirmed, thereby allowing the Republicans to obtain majorities in most circuit courts in record time.

The prior change in the Senate voting rules did not apply to nominees for the Supreme Court or to enactment of legislation. If the Democrats are able to maintain a filibuster against the confirmation of Gorsuch for some period of time, the Republicans will change the voting rules applicable to Supreme Court nominees, thereby ending the filibuster. That rule change would also make it much easier for President Trump to nominate and to have confirmed another conservative nominee for what is likely to be a seat formerly occupied by a liberal or moderate Justice in a year or two.

If the Democrats force the Republicans to change the voting rules applicable to confirmation of nominees for the Supreme Court, they will be tempted to change the voting rules applicable to enactment of legislation at the same time. That, in turn, would make it much easier for the Republicans to enact their ambitious legislative agenda, including repeal of ObamaCare and enactment by the Senate of one or more of the bills that have already been passed by the House that would make it impossible for any agency in a future administration to issue much-needed rules to address major problems like climate change.

In short, the Democrats have nothing to win and a lot to lose by attempting to filibuster the Gorsuch nomination.

Richard J. Pierce Jr. is the Lyle T. Alverson Professor of Law at George Washington University. His work been cited in hundreds of judicial opinions, including more than a dozen opinions of the U.S. Supreme Court.


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