Filibuster On Gorsuch Has No Real Winners

Having won a victory on healthcare as the GOP’s American Health Care Act fizzled ahead of its vote, the Democratic Party is celebratory and keyed up for confrontation. With Donald Trump and Paul Ryan still nursing their wounds, liberal leaders are hoping to score points and reinvigorate their voters after a dismal showing in the 2016 elections. A tremendous opportunity awaits: Filibustering Neil Gorsuch, Donald Trump’s nominee for the U.S. Supreme Court.

Currently, Senate Democrats have enough votes (41) to prevent the Republican Party from invoking cloture and ending a filibuster. This will force Senate Republicans, led by Majority Leader Mitch McConnell (R-KY), to invoke the nuclear option of permanently changing the Senate rules to end said filibuster. While this would indeed get Gorsuch, who has 55 votes in favor of confirmation, on the Supreme Court, it would change Senate procedure.

The Democrats must decide whether or not to filibuster and risk McConnell changing the Senate’s filibuster rules. Such a maneuver would put the Democrats at a disadvantage as long as the Republicans remained the majority party, for the Dems would lose just about any opportunity to filibuster. Public opinion could also be cruel to Democrats, who might be seen as vindictive and immature. 

During the Obama presidency, much ado was made about the GOP being the “party of no” and actively attempting to obstruct virtually anything the Democrats tried to accomplish, especially regarding healthcare. The media, which was decidedly liberal, tried to portray Republicans as sore losers… and perhaps a little bit racist to boot. Can the Democrats take a page out of the 2009-2016 Republican playbook without being tainted by the same bad reputation?

Right now, Donald Trump is so controversial that Democrats may be able to get away with just about any obstruction of his initiatives. However, the public will likely tire of this before long and insist that the Dems either need to win a majority in the House or Senate… or start to compromise. It is likely that liberal leaders realize this and are therefore strategizing on using their political capital right now. A fiery Democratic filibuster less than three months into Trump’s term will invigorate the public, but such a maneuver three years into Trump’s term would only elicit weary groans.

As such, expect Senate Dems to fight Neil Gorsuch’s confirmation with everything they can, including the filibuster. They may also be counting on such a maneuver to provoke President Trump into making hostile and offensive remarks, hurting the GOP’s overall image. The filibuster could be seen as an attempt to bait Republicans into vitriol that could hurt their reputation among moderates and independents.

Considering that Democrats may want the GOP to foam at the mouth, Mitch McConnell and other Republican leaders must weigh carefully any decision to kill the traditional filibuster.  Although the Democrats may be seen as childish for vowing to obstruct any of Trump’s proposals, Republicans might be seen as equally immature for trying to change longstanding rules and traditions to thwart them. 

In this regard, the GOP must tread carefully: After refusing to vote on President Obama’s Supreme Court nominee, Merrick Garland, in 2016, voters may believe that the Republicans must now reap what they have sown. Conservatives are facing charges of hypocrisy for complaining about Democrats’ hostility toward Gorsuch while they stonewalled only one year ago. Eliminating the Senate filibuster over stonewalling, a tactic Republicans themselves used, seems a bit unfair.

However, avoiding the controversial “nuclear option” is almost unthinkable. Either the Republicans would have to withstand the filibuster, which could last for ages, or Mitch McConnell and other Senate Republicans would have to ask Trump to nominate a more liberal justice. This could be done independently, but would likely occur after sending out feelers to Senate Democrats and asking what type of justice might be confirmed. A maneuver like this would also be unthinkable, for it would project weakness.

Asking the Democrats who would be acceptable as a Supreme Court nominee would act as blood in the water and would likely lead to further aggressive tactics. President Trump would never go for it, and would insist on sticking with Neil Gorsuch as his nominee. Essentially, there is no winning option for either party in the Senate by backing down: Democrats are winning by being confrontational, and Republicans lose by not being confrontational.

Almost certainly, we will see the Democrats continue to insist on a filibuster, and Senate Republicans move to engage the “nuclear option” and end the filibuster. This will result in bad press for the GOP, but this is par for the course by now. Republicans will insist that Democrats drove them to this point by being unreasonable, and Democrats will fire back that the GOP was just as stubborn and recalcitrant back when Obama was president. 

Democrats will defend their stubbornness as noble resistance by alleging that Gorsuch would vote to weaken the rights gained by women, minorities, and the LGBTQ community. In this, they have a strong edge over the GOP: Republicans can hardly argue that Merrick Garland was a threat to anyone’s rights. In this battle, the liberals have the definite edge… but the GOP cannot back down. It is trench warfare for the foreseeable future.

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