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Is the Democrats’ Decision to Filibuster Gorsuch Irrational?

The threatened filibuster by the Democrats of Judge Neil Gorsuch seems irrational if its purpose to help create a Supreme Court more friendly to Democratic commitments. Almost everyone expects the response by the Republicans will be the so-called nuclear option by which they use their majority to end the filibuster rule for Supreme Court nominations. The Republicans believe that filibustering a mainstream judge in the first year of a President’s term is illegitimate. Given that in 2013 the Democrats eliminated the filibuster for lower court and executive appointments, they will also regard themselves fully justified in taking a similar action themselves.   And the Republicans will be acting within their constitutional rights: as Mike Rappaport and I have shown, the Senate majority must have the authority to change supermajority rules by majority vote.

The elimination of the filibuster leaves the Democrats in a worse position for the rest of President Trump’s term.   The most obvious reason is that they then cannot filibuster the next nomination— the one likely to fill the seat of Justice Ginsburg or Justice Kennedy. And the confirmation of that judge would, unlike that of Judge Gorsuch, change the balance of the Court, potentially transforming all sorts of doctrines in ways Democrats would despise.

Now some academics, like Sandy Levinson, have argued that Democrats lose nothing by filibustering, because the Republicans would just get rid of the filibuster at the time of the next nomination. But that is not at all clear. First, the nominee might have more problems than Gorsuch. Second, some Republican Senators, like Susan Collins and Lisa Murkowski, would worry about imminent changes to the law on issues like abortion rights that the confirmation of a second conservative justice might elicit.  More dispassionate commentators, like Rick Hasen, understand this difference and recommend against filibustering Gorsuch.

Moreover, the threat of filibustering Supreme Court nominees is more helpful to Democrats than to Republican as a general matter. Because the current of our legal culture runs so strongly left, Democrats can nominate apparent moderates with some substantial confidence that they will drift left. Republicans on the other must find nominees with strongly formed commitments to resist the current and that opens up such nominees to the charge of extremism and thus to filibusters.

If the Democrats are not rational from the perspective of getting a congenial court, they may have other reasons for being sanguine about triggering the nuclear option.  First, the filibuster and subsequent nuclear option may help gin up their base in preparation for the 2018 election. But that is a long time away and citizens’ memories are short.

The more plausible reason is that Democrats are playing a longer game.  Just as eliminating the filibuster for lower court judges and executive branch nominations paved the way for eliminating the filibuster for Supreme Court nominations, so eliminating the filibuster for Supreme Court nominations paves the way for eliminating the filibuster for legislation. And the Democratic party (although not all individual Democrats) would be advantaged by its elimination. As the recent debacle over repealing Obamacare showed, it is harder to eliminate a major government program than to create it, because beneficiaries and those who serve beneficiaries become a powerful interest group for the status quo. Progressivism can better grow the entitlement state by a majoritarian system with fewer legislative checks and balances.

Reader Discussion

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on March 29, 2017 at 05:23:28 am

I hope they filibuster so the rule gets eliminated. Dems are still upset about Merrill Garland, plus they have an irrational hatred of President Trump. Good. Imagine replacing RBG with Bill Pryor!

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Mark Pulliam
on March 29, 2017 at 08:04:49 am

Democrat decision to filibuster is not irrational.
Here's 'irrational':
Republican majority not "nuking" Rule XXII now and forever. It is the filibuster that is irrational.
Maybe--a big MAYBE--it had it's place back in the day before 17th Amendment and Baker v Carr and computerized re-districting made everybody "safe." But today it is a Senate Protection Racket pure and simple and deserves its reserved spot on the asheheap of history.

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Derek Simmons
on March 29, 2017 at 08:37:28 am

"Progressivism can better grow the entitlement state by a majoritarian system with fewer legislative checks and balances. "

I don't doubt your claim, but it doesn't mean much when finding the money to fund new entitlements (let alone current ones) is an increasing problem.

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DOUG WENZEL
on March 29, 2017 at 10:01:08 am

[…] John McGinnis: […]

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Image of “Is the Democrats’ Decision to Filibuster Gorsuch Irrational?” | Election Law Blog
“Is the Democrats’ Decision to Filibuster Gorsuch Irrational?” | Election Law Blog
on March 29, 2017 at 10:45:11 am

The purpose is fairly clear to me. All the far-left liberals in the Democratic Party get to join the filibuster and say they "did everything they could to stop that horrible Justice Gorsuch" and all the Democrats in conservative states that will be up for re-election in 2018 get to buck the filibuster and show how "independent" they are and how they are willing to work with republicans (see you can trust me, I'm a "moderate"). Its all kabuki theater and the filibuster is never meant to actually succeed.

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Devin Watkins
on March 29, 2017 at 11:34:15 am

[S]ome academics, like Sandy Levinson, have argued that Democrats lose nothing by filibustering, because the Republicans would just get rid of the filibuster at the time of the next nomination. But that is not at all clear. First, the nominee might have more problems than Gorsuch.

Problems? Such as, lack merit?

Yeah, there was a time when officials’ selection and confirmation had something to do with merit. Back when people embraced such quaint concepts.

[S]ome Republican Senators, like Susan Collins and Lisa Murkowski, would worry about imminent changes to the law on issues like abortion rights that the confirmation of a second conservative justice might elicit.

I’m not following this. What difference would it make if some subsequent nominee were a threat to abortion rights, provided Gorsuch isn’t? Alternatively, if Gorsuch is a threat to abortion rights, then wouldn’t it make sense for these senators to support the Democrats in filibustering him now? Last I checked, votes on the Supreme Court are fungible.

Look, the filibuster has always existed at the sufferance of whichever party held the majority in the Senate. All that it takes to end a filibuster is for a member of the majority to ask the parliamentarian to rule on whether a filibuster was in order. The parliamentarian is free to rule any damn way he pleases, without threat of appeal, bound only by his conscience. Back when people embraced such quaint concepts.

Face it, the filibuster was a tool that the Senate used to preserve the power of the minority in the Senate at the expense of the rest of government. Thus, it was a tool that Senators used to promote their interests as Senators, relying on a kind of institutional loyalty espoused by Madison—back when people embraced such quaint notions.
And, ok, and there’s also a theory that by providing stability, the filibuster also promoted the interest of the public—again, back when people embraced such quaint notions.

Based on such quaint notions, the Democrats patiently endured the Republican's surging abuse of the filibuster throughout the Obama Administration. And yes, the Democrats eventually turned to the nuclear option after five years of Republican stonewalling, and when there were 59 executive branch nominees and 17 judicial nominees awaiting confirmation.

But any figleaf of concern for merit, institutional loyalty, public good, has all been swept away. It’s all about raw power now.

Having endured the Republican’s repeated votes to repeal ObamaCare, without ever actually having a proposal they would embrace for repealing ObamaCare, Democrats have learned the advantages of the permanent insurgent campaign. So the Democrats will filibuster—because Republicans have taught them how to behave as the party out of power. They’ll be happy to change the judicial outcome if they can. And in any event, they’ll be happy to declare that Brand Democrat is the brand that has nothing to do with Trump--and Brand Republican consists of Trump clones willing to do Trump’s bidding, even as the ship is sinking. Democrats will point out all the promises Trump made, and how very few of them have been kept. Democrats will be happy to point out that Republican health care policies have not provided universal coverage which is both simpler and cheaper. They’ll be happy to point out that the Republicans have failed to restore the world depicted in Leave it To Beaver that voters think they’ve been promised.

In short, the vote for Gorsuch has little to do with Gorsuch, or even the court. It has to do with who gets associate with Trump, and who gets to disassociate. Republicans will vote for Gorsuch—and tie themselves ever more closely to the Trump label.

In the movie City Slickers, Mitch nervously tries to make small talk with the intimidating cowboy Curly:

Mitch: “Hey. How’s it goin’? So … uh … kill anyone today?”
Curly: [long pause] “Day ain’t over yet.”

Republicans will vote for Gorsuch, and thus tie themselves ever closer to Trump--a man who is currently less popular, after two months in office, then Obama was on his worst day throughout eight years in office.

That vote won’t hurt them–now. But the day ain’t over yet.

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nobody.really
on March 29, 2017 at 12:50:14 pm

General arguments = OK; details are Baloney:

1) - " And yes, the Democrats eventually turned to the nuclear option after five years of Republican stonewalling, and when there were 59 executive branch nominees and 17 judicial nominees awaiting confirmation. "

Nobody would have us believe that the GOP simply refused to confirm any Obama Court nominees. I believe that the Big Zero was able to install 300 ideologues to the Federal Bench.
How does that compare with the Dems response to highly qualified nominees by Bush?

Also, one would do well to remember that the GOp has never filibustered a Supreme court nominee. Abe Fortas, a highly unqualified crony of LBJ was a BI-PARTISAN filibuster with 24 GOP and 19 DEMOCRATS voting against cloture.

Also, one need only look at the votes on Sotomayor (of course she was a WISE Latina, so maybe that accounts for it) and Kagan which evidence a definite lack of partisanship on the part of the GOP as these two were comfortably confirmed. Can it be said that the Wise Latina is a better AND more mainstream candidate than is Gorsuch. NONSENSE. I would add that nobody.really believes that!

2) - "So the Democrats will filibuster—because Republicans have taught them how to behave as the party out of power."

Two alternating responses to this nonsense:

a) Perhaps, the GOP learned from the absolutely poisonous / destructive behavior and attitudes of the Democrats during the GW Bush administration - no need to go into details as any sentient being should be able to remember those actions.

b) Perhaps, it is good that the GOP has learned from the Dems - finally they recognize that when dealing with a corrupt, ideological power mad entity such as the Democrat Party, they ought to employ the same tactics.

I will also add that given the absolutely scurrilous, slanderous and irrational behavior as evidenced by the Democrat Party AND the Obama holdovers in Trumps Administration as they attempt to undermine the credibility of the Trump admin with all manner of lies, leaked documents, false charges etc. that the GOP may DECIDE to once again learn from the Democrat Party.

I, for one, would neither be surprised nor find it especially unwelcome.

And here I was thinking that nobody really was recently counseling compromise.

oops, I forgot; to certain types, compromise evidently means "accepting MY narrative."

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gabe
on March 29, 2017 at 16:58:44 pm

BTW:

"According to a May report from the Congressional Research Service,President Obama had 71.4% of his circuit Court nominees approved during his first term , which is slightly better than George W. Bush's 67.3% level of success during his first term.
President Obama also didn't fare the worst when it came to District Court nominees. during his first term, 82.7% of Obama's district court nominees were approved. George H. W. Bush had 76.9% of his nominees approved.

Gee, nobody would have us believe that only those intransigent mean GOP types had ever held up a nominee and that the Sainted Democrats were compelled to learn from the GOP.

Bridge for Sale, anyone?

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gabe
on April 04, 2017 at 05:25:50 am

[…] at Northwestern University has argued that the Democrats’ threatened filibuster this week “seems irrational” if its purpose is “to help create a Supreme Court more friendly to Democratic […]

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Image of Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later? | HueWire
Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later? | HueWire
on April 04, 2017 at 06:42:22 am

[…] at Northwestern University has argued that the Democrats’ threatened filibuster this week “seems irrational” if its purpose is “to help create a Supreme Court more friendly to Democratic […]

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Image of Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later? | TrumpShake
Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later? | TrumpShake
on April 04, 2017 at 07:27:18 am

[…] at Northwestern University has argued that the Democrats’ threatened filibuster this week “seems irrational” if its purpose is “to help create a Supreme Court more friendly to Democratic […]

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Image of Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later? - New York Times - Stock Quotes Now
Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later? - New York Times - Stock Quotes Now
on April 04, 2017 at 09:21:24 am

[…] scholar at Northwestern University has argued that the Democrats’ threatened filibuster this week “seems irrational” if its purpose is “to help create a Supreme Court more friendly to Democratic commitments.” […]

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Image of Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later? – New York Times | | All Breaking News
Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later? – New York Times | | All Breaking News
on April 04, 2017 at 10:13:43 am

[…] scholar at Northwestern University has argued that the Democrats’ threatened filibuster this week “seems irrational” if its purpose is “to help create a Supreme Court more friendly to Democratic commitments.” […]

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Image of Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later?
Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later?
on April 04, 2017 at 12:35:44 pm

[…] scholar at Northwestern University has argued that the Democrats’ threatened filibuster this week “seems irrational” if its purpose is “to help create a Supreme Court more friendly to Democratic commitments.” […]

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Image of Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later? | World News
Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later? | World News
on April 04, 2017 at 19:50:14 pm

[…] scholar at Northwestern University has argued that the Democrats’ threatened filibuster this week “seems irrational” if its purpose is “to help create a Supreme Court more friendly to Democratic commitments.” […]

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Image of Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later? – Trending News
Strategic Debate in Gorsuch Battle: Use Filibuster Now or Later? – Trending News
on April 09, 2017 at 02:07:18 am

You conveniently left out the fate of executive branch nominees in your stats, who made up the vast majority of nominees stonewalled by the GOP. Any sentient being would understand that the GOP abused the filibuster big-time under Obama. The GOP never filibustered a Supreme Court nominee, but neither did Democrats until after the GOP treatment of Garland, which was far more egregious, not to mention that the GOP was thrilled the Dems irrationally decided to waste their last filibuster on Gorsuch. Your comments about the "poisonous" and "scurrilous" behavior of Democrats under Bush and Trump leave no doubt in any sentient being's mind that you are a blindly hyperpartisan hack.

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Yeltommo

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