The Slatest

Are the Democrats Smart to Filibuster Neil Gorsuch? A Slate Debate.

Judge Neil Gorsuch weighs both sides of this vibrant Slate argument.

Drew Angerer/Getty Images

News that the Democrats will filibuster Neil Gorsuch’s Supreme Court nomination prompted a lively debate among Slate staffers on our office chat system, Slack. Here is a lightly edited transcript of that conversation:

Ben Mathis-Lilley: Attaboy Chucko. [two splashpunch emoji from supportive colleagues]

Jim Newell: Filibustering Gorsuch is Bad. McConnell will pay no price for killing the filibuster on Gorsuch. Then there will be no filibuster for when RBG, who should have stepped down in 2013, dies. Making a deal is smart, whether or not McConnell keeps to his word. The consequences for him breaking it over an RBG replacement are much bigger than the consequences for him breaking it over Gorsuch.

Mathis-Lilley: Wow, the rare occasion that I disagree with Jim and am actually not secretly sure that I’m wrong.

Newell: Why do you disagree?

Mathis-Lilley: I just don’t find it plausible that he’ll ever pay a price for killing the filibuster no matter what. [plus one emoji] And I think it makes sense now to obstruct because of Garland.

Newell: What end goal do you hope to attain by having him break it over Gorsuch?

Mathis-Lilley: Nothing clever, just the proverbial statement that killing Garland was bullshit. [plus-one emoji]

Newell: Also, it’s not “him” breaking it. It’s Lisa Murkowski and Susan Collins and all the other senators. They have no problem doing it over Gorsuch. They might later.

Mathis-Lilley: I guess I’m surprised that you think the Repubs would not get in line to jam through someone to give them a guaranteed 20 year SCOTUS majority.

Newell: That is 100 percent what’s going to happen if they do this now. It is maybe 80 percent what will happen if they try it later.

Dahlia Lithwick: 30 year SCOTUS majority.

Mathis-Lilley: Hmm. I’m surprised at 80 percent. I would say 105-130 percent.

Jeremy Stahl: Agree with Jim.

Newell: I think it’s short-sighted to let Mitch McConnell take away your only shield against a 6-3 majority. Over Scalia’s replacement.

Osita Nwanevu: I don’t think voters care about Senate norms at all. This is less about consequences for the GOP for breaking the filibuster, imo, than about an opportunity for the Dems to rally the base and convince voters substantively right now that more conservatives/Republicans on the Court is bad. Also, there are potential long term, game-theoretical benefits to Dems being rabidly oppositional here and elsewhere that are best explained here.

Mathis-Lilley: I am really surprised you think there is even a shred of possibility that the GOP would not kill the filibuster in .00001 seconds to replace RBG with some Federalist stooge. [two point_up emoji from supportive colleagues] And yeah, I was going to say I also don’t find it implausible that Democrats gain some future negotiating strength by showing that they are actually willing to do stuff like this and the gun filibuster that forces the GOP’s hand.

Michelle Goldberg: If Dems had made a deal premised on Mitch McConnell’s good faith, the base would have gone ballistic.

Newell: Then throw a fit then! There will be a much bigger public outcry if RBG is replaced with Ted Cruz.

Mathis-Lilley: I dunno, I think it’s pretty much worth an outcry that the Republicans held Obama’s entirely legitimate nominee for a whole year. Don’t normalize that, Jim.

Newell: I don’t think you should make bad decisions to play to the base. Also, I GUARANTEE you, not one Democrat will lose votes because they let Neil Gorsuch be on the court. People will have forgotten all about it by Nov. 2018.

Mathis-Lilley: Hmm, entering agree to disagree territory. I think after the last election the idea of utterly letting down your currently very activated voters is actually Bad. [plus-one emoji]

Newell: If there was a play where you could stop Gorsuch, then letting him through would be letting your voters down. But there’s not. Gorsuch gets on the court either way, but this satisfies some itch at the expense of the next pick.

Stahl: Also: Is the base going to punish Democrats at the expense of fighting Trump in 2018 just because?

Mathis-Lilley: Yeah I guess I just see “legitimate protest against appalling violation of decency” where you see “Chapo Trap House fan service.” It’s not about punishing it’s about motivation.

Stahl: So, the base is going to be demotivated over Gorsuch with a good chance Trump may have committed some light treason going uninvestigated? And him doing every other bad thing under the sun. But…. Gorsuch? Remember Gorsuch? Who?

Mathis-Lilley: “Go ahead and shoot yourself in the little toe, you don’t really need it” —Jeremy. I think we will remember the conservative justice on the Supreme Court in 2018 and 2020!

Stahl: Fine. That was hyperbolic.

Newell: I think people are going to vote based on Trump being awful and the awful bills they pass.

Stahl: But I think the war with North Korea might distract the base from being upset about Democrats allowing themselves to get rolled on Gorsuch when there was no outcome where they were not going to get rolled on Gorsuch.

Newell: I had so many dumb down-ballot Democratic campaign aides tell me this time last year that they were going to get SO much turnout because of how Garland was being held up. That didn’t work out so well. [two point_up emoji]

Josh Keating: Basing the Gorsuch pushback on the premise that he’s an unacceptable extremist, which is what Schumer’s statement suggests, seems much less logical to me than on the principle that they stole the seat from Garland. But I’ve also heard that the former approach polls much better. So I dunno.

Mathis-Lilley: Ha, I mean I’m not under the impression that there will be 3 million person MERRICK GARLAND NEVER FORGET rallies in October 2020. But I think it’s part of a gestalt of opposition. Classic gestalt move. Also the president is under FBI investigation

Lithwick: One thought on this: If Dems were gonna filibuster they should have stayed away from three day hearing on the merits. Epic error to make this about Garland in retrospect.

Amanda Katz: How does the filibuster survive the current situation anyway? I’m assuming filibuster is probably toast and so you might as well do it now when you have this rank indignity of Dems having to vote for a GOP nom when GOP rejects any need to even hold hearings for a Dem nom. *Plus* dude under FBI investigation.

Stahl: If Dems acquiesce then the filibuster is still around the next time.

Keating: But everyone seems to concede that while conservative, he’s the kind of judge any GOP prez would pick. So why isn’t the Garland argument more valid than trying to Bork him? Unless I’m wrong about that, which is very possible. I only read about Ukraine.

Lithwick: “I am filibustering now because I couldn’t do it last time when I was REALLY MAD about Garland but it was only Scalia’s seat.” #winning.

Katz: Yeah. I just think if you let them have this one you’re saying “we love being run over with trucks, please do it some more,” and voters don’t find that sexy. And again, I assume the filibuster doesn’t survive this level of standoff.

Mathis-Lilley: Yeah I definitely am anti-Borking.

Keating: Is there also an argument that Obama should have picked someone who excited the base more and COULD become more of a Dem rallying cry? Rather than just assuming we’d be appalled that the GOP wants this bland white guy instead of the other bland white guy?

Mathis-Lilley: Yeah I remember that argument. It’s part of the classic “Obama negotiated against himself too much” genre.

Newell: I really wouldn’t assume the filibuster dead, especially given how valuable it is. I don’t think there’s the thirst in the Senate for getting rid of it just for shits and giggles.

Stahl: On SCOTUS, filibuster dies now with a whimper or it is killed in a really uglier way next time.

Newell: (I bet Gorsuch gets like 62 votes anyway so none of this will matter.)