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How partisan battle over Neil Gorsuch could impact Senate, Supreme Court

U.S. Sen. Claire McCaskill meets with Judge Neil Gorsuch, President Donald Trump’s Supreme Court nominee, on Feb. 8, 2017. Photo by Flickr.
The Senate Judiciary Committee voted Monday to approve President Trump’s nomination of Judge Neil Gorsuch to be the next Supreme Court justice, setting the stage for a historic showdown between Democrats and Republicans on the Senate floor Thursday.

At least 41 Democrats have vowed to filibuster Gorsuch on the floor, making it impossible for Republicans to confirm the 49-year-old judge unless they utilize the so-called “nuclear option.”

By a simple majority, Republicans could change the Senate’s rules to abolish the ability of a minority party to filibuster Supreme Court confirmation votes, thus ensuring that Gorsuch will be appointed. But the decision to “go nuclear” isn’t as simple as it seems on the surface.

We asked faculty member Dan Urman, director of the undergraduate minor in law and public policy and a Supreme Court expert, to explain how this political drama might impact the Senate, the Supreme Court, and the 2018 midterm elections.

First and foremost, what is a filibuster?

A filibuster is a procedure whereby a single U.S. senator—usually in the minority political party—endlessly debates (or stalls) a bill or presidential nomination, slowing down, and sometimes preventing, an actual vote on the law or nominee. The word comes from the Dutch term “Vrijbuiter,” meaning pirate, and the Spanish word “filibuster,” meaning freebooting.

The U.S. Constitution does not mention a filibuster, and the first ever filibuster took place in 1841 and involved the firing of Senate printers. Ever since then, politicians have either loved or hated filibusters, depending on what side they represented. In fact, there was no way to end a filibuster until 1917. That year, during a debate over U.S. entry into World War I, the Senate created “cloture,” which ended debate and forced a vote.

In the modern era, filibuster critiques often focus on the frequency with which it gets used, and the end of the “talking filibuster.” In the 1970’s, Senator Robert Byrd invented a dual-track system whereby the majority leader could set aside what was being debated on the Senate floor and move immediately to another agenda item. This has resulted in the absence of marathon debate sessions, or “talking filibusters,” that we are familiar with from popular culture (Jimmy Stewart in Mr. Smith Goes to Washington, for example). Senate business continues, so a filibuster does not really “stop” anything other than debate on that particular issue.

In 2013, Democrats, led by Sen. Harry Reid, changed the rules so that senators could approve federal judges and executive branch nominees by a simple majority, rather than the 60 vote standard in place since 1975. The change did not apply to Supreme Court nominees or to legislation. At the time, then minority leader Mitch McConnell called it “A sad day in the history of the Senate.” Republican Sen. Richard Shelby said “Democrats won’t be in power in perpetuity…This is a mistake—a big one for the long run.” Sen. McConnell is the majority leader now, and is overseeing the efforts to invoke the nuclear option on Supreme Court nominees.

One conservative legal scholar has argued that the Democrats should save their filibuster for the next Supreme Court vacancy, saying that their threatened filibuster this week “seems irrational” if its purpose is “to help create a Supreme Court more friendly to Democratic commitments.” In your opinion, should the Democrats use the filibuster now or save it for later?

It is hard for me to see President Trump changing who he nominates based on the behavior of the Senate Democrats. He has not demonstrated an ability to reach across the aisle. His Cabinet lacks a single Democrat. As Judge Gorsuch noted in his Senate questionnaire, Leonard Leo, executive vice president of the Federalist Society, a very influential conservative legal organization, led the Supreme Court vetting process, including the creation of Trump’s list of 21 Supreme Court candidates. In fact, Leo was the first person to contact Gorsuch on behalf of the Trump administration.

If the Democrats can speak with one voice, and potentially attract moderate Republicans, which is unlikely, this filibuster will help them accomplish several goals. First, they will be able to remind Americans that Mitch McConnell and his fellow Senate Republicans stole this seat from Judge Merrick Garland and President Obama. Second, Democrats can make President Trump spend political capital, which involve him wooing moderate Senate Republicans. Third, they can mobilize the Democratic base, especially women. In the last election, 42 percent of female voters chose President Trump. Recent reports indicate that Judge Gorsuch refused to meet with three female senators of color. Perhaps this symbolic snubbing of women in the Senate will remind them of the importance of elections and allow Democrats to make it a campaign theme. A future Democratic President, only needing 50 senators, plus the vice president, could nominate more liberal justices like Goodwin Liu, Pam Harris, or Pam Karlan.

According to a New York Times report, Republican Sen. Lindsey Graham predicted that a majority threshold for Supreme Court confirmations would lead to the elevation of future judges who are “more ideological, not less.” What do you think the fallout of the nuclear option would be, particularly as it relates to the future of the Senate and the Supreme Court?

William E. Gladstone, a former British Prime Minister, referred to the U.S. Senate as a “remarkable body, the most remarkable of all the inventions of modern politics.” The Senate has always prided itself on its unique role in American politics; every single senator has an essential role to play, and can grind the Senate to a halt until a supermajority invoked cloture. This change will turn the Senate into a more majoritarian institution. The nuclear option symbolizes the end to the Senate’s role as the world’s greatest deliberative body. It also represents a symptom, not a cause, of increasing partisanship: the triumph of party before country. Sen. Graham suggests that all future Senate races will become referenda on the U.S. Supreme Court, and I welcome that. It would mean the public would gain a deeper understanding of the role of the Supreme Court in American law, policy, and politics.

Politico recently published a story under the headline “Liberals taste victory no matter Gorsuch outcome,” in which MoveOn.org Washington director Ben Wikler is quoted as saying “Democrats showing they can unify against Gorsuch helps energize the grass roots. If Republicans decide to go nuclear, that will further energize the resistance movement. The only bad path here is for Democrats to flee the fight.” How do you predict this fight will impact the outcome of the 2018 midterm elections?

That’s a great question, and like Chairman Mao’s (apocryphal) comment about the effects of the French Revolution, it might be too early to say. I would imagine that issues related to healthcare coverage, Russian tampering in the election, and promises to impeach the current president will play a larger role in the midterm elections. Furthermore, Republicans are poised to extend their majority in the U.S. Senate because of the seats that are up for grabs. Ten of the 25 seats Democrats are trying to defend are in states Trump won in 2016, some by double digits. I do not see this fight playing a central role in the midterm elections, because the court will not “turn” to the right so much as it will revert to its ideological makeup on February 12, 2016—when the now deceased Justice Antonin Scalia was still on the court.

On the other hand, voters tend to support divided government. In six of the past 10 midterm elections held during a President’s first term, the party in power lost Senate seats. If President Trump’s unpopularity holds, remaining below 40 percent, Democrats would be wise to turn the elections into a referendum on the sitting president. This happened in 2010, which brought members of the Tea Party and Freedom Caucus to Congress in large numbers.