Chuck Schumer’s Filibuster Folly

Senate Minority Leader Chuck Schumer vowed today that Democrats would filibuster the nomination of Judge Neil Gorsuch to the Supreme Court. This is foolhardy on any number of levels.

By any measure Judge Gorsuch is an imminently qualified judge with a sterling track record and a deep respect from his peers. Even President Obama’s solicitor general has supported Gorsuch’s nomination, calling him an “extraordinary judge and man” who would “help restore confidence in the rule of law.”

But Democrats don’t care about any of that. Instead, frustrated by the fact that Senate Republicans exercised their prerogative to not hold hearings on President Obama’s Supreme Court selection, Senate Democrats are exacting their revenge.

“Garland should be in this seat, and Democrats should go as far as they possibly can to avoid giving even a shred of validation to the way Republicans stole it,” Paul Waldman argues for the Washington Post.

This isn’t just shortsighted, it could doom Democrats to more years in the political wilderness. Sure, Schumer’s act might score a few points with his progressive base. But at what cost? Voters already sent a loud and clear signal that they wanted change in Washington, and many of them focused their attention on the Supreme Court vacancy.

Election Day exit poll showed that more than one in five voters (21 percent) identified the Supreme Court as “the most important factor” in determining which candidate they would vote for. Those voters overwhelmingly favored Trump, 57 to 40 percent, a reflection of Democrats’ blasé attitude towards the issue.

Those views haven’t changed, which could make life extremely difficult for the numerous red state Democrats up for reelection in 2018. Of the 34 seats up for reelection, 25 of them are currently held by Democrats, and of those 25, Donald Trump won by double digit margins in five and won outright in five others. Do those Democrats really want to anger the very same voters they’ll be counting on for reelection?

The answer to that question becomes even clearer given Senator McConnell’s insistence that Republicans will do what it takes to ensure Judge Gorsuch is on the Supreme Court.

“That is a not-so-subtle way of saying they will change Senate procedure to overcome a filibuster,” explains Carl Hulse for the New York Times. “They believe such a move is eminently justifiable, given that Senate Democrats did so in 2013 to eliminate the 60-vote filibuster against nominees except those for the Supreme Court.”

Why then would you not protect your vulnerable incumbents from dying on a meaningless hill? Especially since it would simultaneously lead to the destruction of one of the most important checks you’ll have against further Supreme Court nominations, one that could be far more objectionable than Neil Gorsuch?

I’d like to think that there is an answer to that question, but inevitably there is not. Senator Chuck Schumer is known for his love of the spotlight, but he’s never had a reputation as a strategic thinker. Senator Bob Dole once quipped that “the most dangerous place in Washington is between Charles Schumer and a television camera.” But you can bet that a tactician like McConnell isn’t similarly afraid about playing political chess with Schumer.

In fact, I’m not even completely sure that Schumer knows what he’s trying to achieve by filibustering Judge Gorsuch. In announcing his approach, Schumer said that Gorsuch “was unable to sufficiently convince me that he’d be an independent check” on President Trump and that Gorsuch is “not a neutral legal mind, but someone with a deep-seated conservative ideology.”

That flies in the face of Democrats’ earlier strategy, which was to pick apart Gorsuch’s legacy of skepticism of the executive branch. Does Sen. Schumer not realize that Gorsuch’s driving thesis is that Congress, not executive agencies, and surely not the courts, should be driving the creation of law? And does Schumer not understand what that means vis-a-vis a Trump White House? To put it simply, it means that Gorsuch’s jurisprudence is tailor made for pushing back against Trump’s use of executive power, something that Schumer should welcome, not scorn.

Then again, this entire column assumes that Sen. Schumer and Democratic leadership in Congress will act rationally. And frankly, that may simply be giving them too much credit. So sure, go ahead and attempt to block an eminently qualified and undisputedly fair jurist. I’m sure that will work out well, especially for your endangered red state incumbents.