Senate Minority Leader Chuck Schumer’s suggestion that Democrats will filibuster Judge Neil Gorsuch’s nomination to the Supreme Court might make sense as payback for the Republicans’ block on Judge Merrick Garland — if the Democrats thought they could lockout any nominee of President Donald Trump until 2020. If not, however, this seems like a bad moment to bring out the filibuster and subject it to the risk that the Republicans will use the so-called nuclear option to eliminate it for this and future Supreme Court fights.
Using the filibuster when Republicans say they will kill it is a high-risk, high-reward strategy. It would be wise to save it for a Supreme Court nominee who was truly terrible, rather than using it on a well-qualified nominee.
Schumer is under pressure from his party’s liberal base to block Gorsuch, and it’s difficult to know exactly what he’s is thinking. There are two leading possibilities, each worth considering in turn.
Scenario No. 1
One is that Schumer may believe the filibuster actually has a chance to work, in the sense that the Republicans won’t have the 51 votes to kill it. There are whisperings that several Republicans don’t want to deploy the nuclear option. Perhaps the disarray among House Republicans over the American Health Care Act is also inspiring Democrats to try to undercut Republican unity.
Yet blocking Gorsuch would be very unlikely to persuade Trump to retract Gorsuch’s nomination and name a more moderate judge. It’s not in Trump’s personality or interest to back down.
That would mean the Democrats’ goal would have to be to block Gorsuch indefinitely, the way Garland was blocked, but for three or four times as long, until the next presidential election at least.
And it doesn’t seem terribly likely that Republican senators would be prepared to hold onto the filibuster for 31/2 years if it meant keeping Antonin Scalia’s seat empty. That’s mostly because those Republicans would in effect be associated with the Democrats — they could be depicted as refusing to confirm Gorsuch.
And here’s where Gorsuch’s plausibility as a justice becomes relevant. He’s not a candidate who can be depicted as dangerously out of the mainstream or as unqualified. He’s a solid conservative who (in my estimation) will probably start out somewhere between Chief Justice John Roberts and Justice Samuel Alito on the political spectrum. He could potentially move in Roberts’ direction in light of his temperament and doctrinal approach, which seem closer to Roberts’ than to anyone else on the court.
Republicans won’t want to be seen as blocking Gorsuch. So when Senate Majority Leader Mitch McConnell comes to tell them to get on board and go nuclear, they’ll have to do it — eventually.
Scenario No. 2
Schumer knows all this, which leads to the second theory that would explain his approach: He expects the filibuster to be killed by the nuclear option, and is happy to see that happen now. This might be because he thinks the Democratic base and donors want to see Senate Democrats use every tool at their disposal. Or it might be because he thinks a standoff is particularly useful now, when the Republicans look weak.
If it’s certain that the filibuster will be killed, now or in the future, then it’s just a matter of political timing. But it’s not so clear that the filibuster’s death is inevitable — or that the timing is right.
Imagine if Trump had nominated a truly terrible and terrifying candidate. Sen. Lindsey Graham, R-S.C., hinted that he feared as much during the confirmation hearings when he said he’d worried that Trump would nominate someone “from TV.” (I think Graham meant Judge Andrew Napolitano, the Fox News contributor who’s for the moment off the air after suggesting that British intelligence spied on Trump for the Obama administration.)
With a frankly bad nominee, the filibuster might work. If Republicans thought the candidate was bad, Trump might be forced to replace the nominee. That sort of thing can happen: George W. Bush replaced his nomination of Harriet Miers with Alito after criticisms that came in significant part from Republicans who thought she was unqualified and potentially not conservative enough.
If the Republicans kill the filibuster now, it will be harder to block a really scary nominee in the future. And even the fear of that possibility might make Trump choose a plausible nominee the next time, assuming there is a next time.
Like everyone else, I wish Justices Ruth Bader Ginsburg (who just turned 84, happy birthday!), Anthony Kennedy (80) and Stephen Breyer (78) long and professionally productive lives. But there’s an actuarial chance that Trump will get to nominate another justice.
If the filibuster is eliminated altogether, I won’t mourn it. The practice is undemocratic, and has a nasty history of being used to block civil-rights legislation. But so long as it exists, the filibuster is part of the Senate minority’s toolkit, and it should be treated a tool of some value.
Neil Gorsuch is no progressive. But liberals could do worse — much worse. And it’s the Senate Democrats’ job to do what they can to reduce the risk of an unqualified, radical Trump nominee in the future.
Noah Feldman is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem — and What We Should Do About It.”