The Senate Judiciary Committee approved Neil Gorsuch’s nomination in an 11-to-9 party-line vote today. But 41 Senate Democrats have now pledged to oppose Gorsuch, which gives them the votes needed to block his nomination. In response to a planned Democratic filibuster, Republicans say they’ll invoke the nuclear option for Supreme Court nominations and confirm Gorsuch with a simple majority of 51 votes. “Judge Gorsuch is going to be confirmed,” Mitch McConnell vowed on Sunday.
In addition to conservative supporters of Gorsuch, some liberal legal experts have also raised doubts about filibustering Gorsuch. “I have no doubt that a Justice Gorsuch will be awful for progressives on the issues that they care the most about: abortion, affirmative action, campaign finance, voting rights, environmental protection, gun rights, and everything else,” writes UC Irvine law professor Rick Hasen. But he cautions:
Imagine if in a year or so Justices Breyer, Ginsburg, or Kennedy leave the Court. Then things get MUCH worse from the point of view of progressives. Then Roberts becomes the swing voter and there goes affirmative action, abortion rights, etc. If you think things with the Supreme Court are bad for progressive now they can get much, much worse.
Better to save the firepower for that fight. It is possible that Senators like Susan Collins would be squeamish about such a nominee, and they might not vote to go nuclear. At that point, people can take to the streets and exert public pressure. At that point, the left will perhaps realize what they lost when they lost the 2016 election and how bad things will be.
The problem with this argument is that it’s delusional to believe that Mitch McConnell—who prevented Merrick Garland from even receiving a hearing—would allow Democrats to filibuster the next Supreme Court vacancy if they allow Gorsuch to go through. If Justice Kennedy or a liberal justice like Ginsburg or Breyer stepped down and Republicans had the ability to overturn landmark laws like Roe v. Wade with a 6-to-3 vote, they would do everything in their power to make it happen and wouldn’t blink for a second about going nuclear. Moreover, because a number of red-state Democrats are up for reelection in 2018, Senate Democrats may have fewer seats and even less leverage when the next Supreme Court vacancy occurs.
There are at least five good reasons to oppose Gorsuch now.
The first reason is Merrick Garland. We wouldn’t even be talking about Gorsuch if Republicans hadn’t stolen a Supreme Court seat from President Obama. And now Republicans are engaged in an unbelievable rewriting of history, literally deleting Garland from recent memory. “Even President Obama’s two Supreme Court nominees were recognized for their ability to do the job and confirmed without incident,” Arizona Senator Jeff Flake wrote in The Arizona Republic on March 25. Except there were three nominees!