In Washington, D.C., the cognoscenti confidently predict that Supreme Court nominee Neil Gorsuch will be easily confirmed. But both supporters and opponents are chastened by the predictors’ embarrassingly wrong prognostications over the past year. And that is presenting Senate Democrats in particular with a strategic dilemma.
Ron Klain has been a key Democratic player in four Supreme Court confirmations, first overseeing two Republican nominations in the early 1990s as a top staffer for then-Sen. Joseph Biden — who chaired the Senate Judiciary Committee — and later promoting two of President Bill Clinton’s Supreme Court nominees while serving as a top White House aide.
A filibuster is likely, and likely futile
Klain expects that most Democrats will end up voting against Gorsuch. But the strategic question is whether the Democrats will try to block the nomination with a concerted filibuster, which takes 60 votes to break.
“The reality is there’s going to be a filibuster,” Klain says. “It takes only one senator to start a filibuster, only a handful to sustain it.”
His guess is that there are more than a handful who will launch a filibuster, and everyone will have to wait to see where the votes fall.
“I think this is round one of a 15-round fight,” Klain says. “We’ll see what round 15 looks like.”
Future Senate and Supreme Court seats could be at risk
A filibuster could cost the Democrats dearly if Republicans decide to exercise what’s called the “nuclear option” and get rid of the filibuster altogether for Supreme Court nominees.
“What they lose is, this is their one chance to make this into a big issue, to get attention,” observes Richard Hasen, professor of law and political science at the University of California, Irvine.
He suggests it might be smarter to save the political clout for the time when any of the court’s three oldest justices — 83-year-old Ruth Bader Ginsburg, 80-year-old Anthony Kennedy, and 78-year-old Stephen Breyer — might retire. If any of them were to leave during the Trump administration, he notes, that “would really change the balance of power on the Court.”
Klain, the Democratic operative, acknowledges that the calculus is complicated.
“I do think that the level of toxicity and anger among rank-and-file Democrats is at an all-time high,” he says. The American public has been ahead of the senators every step along the way here in the last couple of weeks.
“We’ve seen, for cabinet nominees — some who seemed like they were going to be easy to get confirmed, have large numbers of Democratic voters — we’ve seen that vote tally peel back every day,” he says.
Hasen, who closely follows social media, agrees the danger for Democrats is real.
“If [Senate Democratic leader Charles] Schumer and the other Democrats roll over, what is potentially likely to happen is that there will be some Democrats on the left who will try to primary these senators — who will try to act like a Tea Party on the left and try to enforce some ideological discipline on senators who are not willing to take a broader stand,” Hasen says.
That could have dire consequences for Democratic numbers in the Senate in the election two years from now. In 2018 Republican incumbents are defending only eight Senate seats, while Democrats are defending 23, 10 of them in states carried in the 2016 election by Donald Trump.
“This is going to put them in a very difficult spot,” Hasen continues. “It could be that by the time we get the 2018 elections, the Democrats could lose more seats, and will have even less power in the Senate than they have now.”
That, he says, could mean “now is the time to take a stand, while you still have some powder left to use.”
Neal Katyal, who served as the government’s chief advocate in the Supreme Court during the Obama administration, says he understands Democratic rage regarding the GOP’s unprecedented refusal for almost a year to even consider Obama’s nominee for this very Supreme Court seat.
“But in this world we are in, what I care most about is a judge who’s going to be independent from the executive and call it like he sees it,” Katyal says. “And that’s how I see Judge Gorsuch.”