Democrats Have No Play on Neil Gorsuch

Be careful.

Supreme Court nominee Neil Gorsuch looks on as Senate Judiciary chairman Sen. Chuck Grassley speaks to reporters before their meeting on Capitol Hill, February 1, 2017 in Washington, DC.
Supreme Court nominee Neil Gorsuch looks on as Sen. Chuck Grassley speaks to reporters before their Wednesday meeting on Capitol Hill in Washington.

Drew Angerer/Getty Images

Beware anyone who tells you that there is an obvious play for Senate Democrats in handling Judge Neil Gorsuch’s nomination to the Supreme Court. There is no such play. There is barely any play at all. It is an awful situation, because being in the minority is awful, and if they botch their next move, it could be more awful still.

The most viscerally satisfying play for Senate Democrats would be to disengage completely. As Democratic Rep. Earl Blumenauer put it, “I encourage my Senate colleagues to give Neil Gorsuch the same courtesy Senate Republicans gave Merrick Garland.”

But it is impossible to treat this situation as the mirror image of Garland, since one integral aspect has remained constant: Republican control of the Senate. If Democrats controlled the Senate, the play would be straightforward: Tell President Trump that the only Supreme Court justice he can get confirmed for that vacant seat is Merrick Garland. Democrats can only fantasize about how stirring it would feel to say that to Trump, though, since they do not control the Senate. The Republican Senate will engage, and all Democrats will have is a good view of Gorsuch’s confirmation.

Some Democratic senators are already finding out that taking that seat comes with political consequences from an irate party base. The knives were out Tuesday among for any Democrats who did not promise to punch Gorsuch in the face upon first sight. When Sens. Claire McCaskill, Richard Blumenthal, and Dick Durbin, to name a few, said Tuesday that they would go through the basic motions with Trump’s nominee—meet with him, see what he has to say, and then decide whether or not to join in a filibuster—they were met with a wave of condemnation for supposedly rolling over. (It also didn’t help that their positions were incorrectly reported at first.)

It’s a little more complicated than that. If Democrats don’t take up their seats at the table and go through the process—if they, with no power, try to tell Donald Trump that they will not engage with any non-Garland nominee—they are assuring themselves nothing both now and down the road. Senate Republicans will find themselves in the clear to do away with the filibuster with no consequence, blaming it on Democratic petulance. Neil Gorsuch will land on the Supreme Court, quickly, and in another year or so Justice Ted Cruz will enjoy swift confirmation to replace either retiring Justice Thomas or Kennedy, or dead Justice Ginsberg or Breyer. Liberals would lose the court for generations. Yes, generations. Effectively permanent loss of the Supreme Court is not a fate that liberals should be so quick to confine themselves to while a weapon against it remains on the books.

Don’t be 100 percent certain that the Supreme Court filibuster is already effectively dead and just waiting for someone to kill it. Sure, if Democrats “played nice” with Gorsuch—which doesn’t mean they’d take him out to the strip club to celebrate the dawn of his 40-year reign, just that they’d eventually supply the eight votes he’d need to break a filibuster—Republicans could still nuke it the next time to make way for Justice Cruz. The appetite for such an aggressive power play isn’t consistent throughout the Republican caucus, though.

If Trump were to nominate a Justice Cruz, or whoever else might seriously shift the balance of the court the next time, Democratic deployment of the filibuster would be more widely perceived as reasonable: an extraordinary response to an extraordinary action. That would increase the cost of nuking it. As we’ve seen this week, Republican senators such as Lisa Murkowski or Susan Collins are responsive to this cost if vocal constituents lay it squarely before them. All Democratic tactics over the next four years should be about creating political space for the likes of Murkowski, Collins, and other swayables to commit the occasional partisan apostasy. Targeted obstruction does this. Blanket obstruction does not.

If you have no play, then the play is to not do anything stupid. Meet with Gorsuch. Attend his hearing. Ask him tough questions. See if the vetting process uncovers, say, a graveyard of prostitutes in his backyard. And then vote however seems appropriate on the merits with the future in mind. Maybe this is obvious after all.