Never Forget Merrick Garland

Why Democrats have to go through with a filibuster of Neil Gorsuch.

Neil Gorsuch

Supreme Court nominee Neil Gorsuch during the third day of his Senate Judiciary Committee confirmation hearing on Capitol Hill in Washington, on March 22.

Jim Bourg/Reuters

Sen. John McCain was in a manic state on Monday. Usually when the specter of a Senate rules change is in the air, he is gathering centrist members from both parties to seek a resolution. He is not gathering anyone together at the moment, though, as Republicans are poising themselves to blow up the Senate filibuster this week in order to place Judge Neil Gorsuch on the Supreme Court. When a reporter asked McCain, who was about to step into a Senate elevator, if this was the beginning of the end of the institution as we know it, he said, flatly, “Yes.”

“It’s a slippery slope,” he continued. “The next rule [change] will be the legislative [filibuster]. [Then] there’s no reason for us to be bicameral. Why not have one body that votes? It would save the taxpayers a lot of money.”

He kept going: “There’s no cooperation. It’s all a matter of actors and angry people and reapportionment, gerrymandering, none of it good.”

His elevator doors finally began closing. “Happy days!” he said.

McCain, by the way, will vote to change the Senate rules.

Shortly after Gorsuch’s nomination passed out of the Judiciary Committee, Senate Majority Leader Mitch McConnell opened it up to debate on the Senate floor. He explained that he would devote nearly all of the chamber’s time this week to debating Gorsuch ahead of a Thursday vote and encouraged his colleagues to use the time to speak up.

But what is there to say during these three days, besides ruminating about how much our politics suck?

There’s an eerie lack of drama in the Capitol ahead of what’s been billed (or overbilled) as a “Senate showdown.” Since we already know the ending, the “showdown” is more like a “procedural timeline.” Democrats will filibuster the nomination on Thursday, Republicans will change the rules, and Neil Gorsuch will be confirmed to the Supreme Court with about 56 votes. There are no developments. No one is talking. Sens. Lindsey Graham and McCain will not give a press conference with Sens. Patrick Leahy and Dianne Feinstein on Thursday, arms linked, announcing that crisis has been averted and that the Supreme Court filibuster will live forever. The rules are changing, and then we’ll all move on with our lives.

Not all Republicans are comfortable saying to reporters that yes, they will vote to change the rules to get Gorsuch through. Idaho Sen. Jim Risch told me he had “no comment” about how he’d vote on a rules change and just offered “I support Gorsuch” instead. Alaska Sen. Lisa Murkowski said, repeatedly, that she supports Neil Gorsuch to every possible permutation of the question about the nuclear option. Arizona Sen. Jeff Flake, one of the only two realistically endangered Senate Republicans in 2018, just said that Gorsuch “will get confirmed.” On Tuesday, when South Dakota Sen. John Thune, a member of the Republican leadership, answered “we have the votes to confirm the judge” to several questions about whether leadership had the votes to change the rules, I finally asked him: Why can’t he just say that they have the votes for the “nuclear option”? Why can’t he say what they’re going to do?

“Well, we think the ‘nuclear option’ is filibustering Supreme Court nominees,” he said.

Don’t let members’ coyness about naming the deed they’re about to do fool you: They have the votes. McConnell, one of the few who has gone from heavily hinting about the rules change to outright saying it, was asked at his Tuesday press conference whether he has the votes to change the rules.

“Yes,” he said.

If Democrats are having any second thoughts about the posture they’ve taken, they’re not showing it. They are sticking to their message: Gorsuch is too far to the right for their tastes, and also, never forget Merrick Garland. With the exception of four Democratic senators—three who have difficult re-elections coming up, and one who’s under pressure not to block his home-state judge—the caucus is unwavering in its commitment to filibustering Gorsuch.

Delaware Sen. Chris Coons did not come to this easily. A Judiciary Committee member, Coons two weeks ago reportedly had floated a deal with Republicans to avoid the “nuclear option.” On Monday, he became the 41st Democratic vote against cloture, ensuring the filibuster’s success.

When a reporter asked him afterwards how things could have gone differently to avoid this moment, his response was simple: “Merrick Garland could have been given a hearing and vote.”

“There are many currently serving colleagues of mine who, 10 and 20 years ago, have cast sort of bold or bipartisan votes on previous Supreme Court justices,” Coons continued. “But as I’ve talked to my colleagues in the last week, [there’s been] a pretty broadly shared sense that this is a stolen seat and that simply threatening us with changing the rules rather than engaging with us is not a good approach to this confirmation.” Good approach or not, it is the approach.

Leahy, the dean of the Senate and a former Judiciary Committee chairman, is one of those older members. He, too, announced Monday that he would join the filibuster. It was the combination of Gorsuch’s “patronizing” testimony, along with the legacy of the Garland blockage, that changed his mind.

I respect this institution as much as anyone. For over 42 years I have devoted myself to the good that it can accomplish. But I cannot vote solely to protect an institution when the rights of hardworking Americans are at risk. I fear the Senate I would be defending no longer exists. I have often said that the Senate, at its best, can be the conscience of the nation. I must now vote my conscience, both today and later this week. My conscience will not allow me to ratify the Majority Leader’s actions—not last year and not this year. I will not support advancing this nomination.

Personally, I have always been pathetically squishy on whether it makes sense for Democrats to filibuster Gorsuch. Doing so ensures that Democrats get nothing now and nothing if President Trump is able to choose the replacements of Ruth Bader Ginsburg, Stephen Breyer, or Anthony Kennedy in the years to come. Yes, Republicans could just blow up the filibuster the next time, but they’d face a higher political price for doing so. It would be less popular for a swing-state Republican senator to vote to change Senate rules to replace Ginsburg with Justice Ted Cruz than Scalia with Justice Gorsuch.

But when you hear people like Lindsey Graham casually say, for example, that “we’re not going to have a rule, a tradition in the Senate where [Democrats] get their judges and President Trump can’t get his” with a straight face, it’s hard to think that Democrats aren’t making the right call. This was a stolen seat, and Neil Gorsuch is no friend to those who possess a liberal view of government. Cooperating with McConnell and the Senate Republicans after all of this just wouldn’t smell right. Maybe it’s not worth gaming things out any further than that.