Gorsuch Confirmation Hearing Day 2

Yesterday’s Senate Judiciary Committee’s session on the nomination of Neil Gorsuch to the Supreme Court, was taken up with each of the  20 Senators making their opening statements, the introduction of the nominee by his two home state Senators and a former Solicitor General under President Obama, and finally the nominee’s opening statement. Today the real meat of the confirmation gets underway, questions from Senators to the nominee.

Baring some wildly unexpected development it’s a near certainty that Gorsuch will be reported out of the committee and to the full Senate with a favorable recommendation, likely along party lines.

Once there, the question for Democrats is whether or not to filibuster the nomination. Unlike other executive nominations, Supreme Court nominations still require 60 votes to move on to a final majority vote for confirmation. After a 2013 rule change made when Democrats controlled the chamber, members of the party found themselves unable to stop or influence any of the Trump administration’s cabinet picks.

Activists want Democrats to use the filibuster to stop Gorsuch.

On Monday, leading organizations on the left — including MoveOn, UltraViolet and NARAL Pro-Choice America — sent emails to their millions of members asking them to demand that Democrats filibuster any vote to confirm Gorsuch. The push came as the Senate Judiciary Committee today began its confirmation hearing for Gorsuch.

While the majority of Democrats are expected to oppose Gorsuch’s confirmation, there has been palpable frustration among progressive activists that more Democratic senators have not yet publicly declared which way they intend to vote. Progressives wanted commitments even before questioning of Gorsuch is completed.

“We’re not hearing from enough of the Democratic senators that they will fight this nomination with everything they have. We need them to understand that simply stating their opposition to Neil Gorsuch is not enough,” NARAL President Ilyse Hogue wrote in an email to the group’s list that went out this morning. “We need Senate Democrats to filibuster this nomination and demand a nominee who represents the mainstream values of our country.”

This is a tough nut for Democrats.

Their base is engaged and wants results. This is the first real chance Democrats have to deliver. The problem is there may be enough Democrats to break a filibuster (the GOP would need 8 to cross the aisle).

Some of the Democrats from states Donald Trump won in 2016 who are facing reelection in 2018 have a narrow path to walk. They have to do enough to appeal to their base to avoid a primary challenge (and to be able to raise funds for a general election, often from donors in more liberal areas of the country) while not veering too far to the left of their more purple/red home state voters. Can they play the “vote for cloture but against final confirmation” game successfully?  Will an energized and angry base allow them to tip-toe that line?

If Democratic activists do succeed in forcing a successful filibuster, there maybe a longer term price to pay.

Like the Democrats in 2013, Republicans could simply change the rule by majority vote to lower the filibuster bar to 50 votes for Supreme Court picks as well.

In that scenario, Gorsuch would still be confirmed but liberals would lose that option against any future Trump nominees.

The GOP could still change the filibuster rule next time but it might be harder.

Gorsuch has the support of every Republican Senator at this point. The conference stuck together for nearly a year to hold the late Antonin Scalia’s open in the hopes of a Republican President nominating his replacement. Even the most moderate members of the GOP caucus was on board with that move, or at least did not complain publicly.

Should the Democrats force them to end the filibuster to get to the payoff of that strategy, the GOP would almost certainly have the votes to do it.

For Gorsuch.

If the filibuster isn’t eliminated and the next vacancy is a justice who was appointed by a Democrat, Trump might have to consider nominating a more moderate, compromise candidate (that might be his inclination anyway as his public list of potential judges only applied to this vacancy). There are moderate Republicans who might not be willing to end the filibuster to seat a conservative justice who would shift the ideology of the seat and thus the Court.

But if the Democrats insist on a likely futile attempt to stop Grosuch they will remove this potential leverage point for the future.

This is one of the cases where politicians really may have to think 2 or 3 moves ahead but it’s likely short and medium term political calculations will win out over long term potential fights. Liberal activists have two weeks to convince Democrats they are serious about punishing them for failing to exert maximum effort against Gorsuch. We’ll know soon enough if they succeed.