Just flagging this point made last night by Byron York, which seems to me undeniably true yet almost completely overlooked in all the Kavanaugh drama.
Remember some Dems said, no, let’s don’t filibuster Gorsuch, force McConnell to go nuclear. Gorsuch has too much support; seat is straight 1-for-1 replacement of conservative Justice Scalia. Not right time. 2/4
— Byron York (@ByronYork) September 27, 2018
But Schumer filibustered Gorsuch, McConnell went nuclear. Deed was done. Now, had Dems waited, would 51-vote GOP majority be united enough to eliminate SCOTUS filibuster for Kavanaugh? 4/4 End.
— Byron York (@ByronYork) September 27, 2018
Democrats last year found themselves wrestling with a terrible strategic dilemma, as York says. Should they filibuster Neil Gorsuch and dare McConnell to nuke the filibuster in order to push the nominee through? Or should they bow to the reality that Gorsuch was likely to be confirmed, stand aside, and keep their powder dry for the much more contentious Kennedy (or Ginsburg!) vacancy?
Many lefties demanded a filibuster. It was the least Schumer could do to protest the blockade of Merrick Garland. The only way to communicate the injustice of Trump rather than Obama filling the Scalia seat was to demand a party-line vote in opposition to the nominee, no matter who that nominee might be.
But that was stupid. Not only was Gorsuch well qualified, he was low key and likable. Plus, McConnell had offered the electorate a square choice the previous November about whom they wanted to fill the Scalia vacancy, Clinton or Trump. Voters made their choice. And of course, with Harry Reid having blazed the trail on filibuster-nuking with his own successful nuclear strike for lower-court judges in 2013, Democrats couldn’t even claim that the GOP would be taking some insanely norm-busting action if they rammed Gorsuch through.
With every argument in their favor, Senate Republicans had every reason to pull the trigger on nuking the filibuster. Which, of course, they did.
But what if they hadn’t? What if Schumer had backed down, allowed Gorsuch to be confirmed, and the filibuster was still intact for Supreme Court nominees right now? Lefties at the time howled that a ruthless operator like McConnell would have just nuked the filibuster for the current nominee if it had come to that. But Cocaine Mitch doesn’t rule by fiat. He would have needed 51 votes to change the rules and eliminate the filibuster — and under the current circumstances, those 51 votes would have been next to impossible to get. Here’s a passage from February 3, 2017, when I wondered what might happen if the nomination for the next vacancy went to a “controversial” nominee like, say, Ted Cruz. The controversy in Cruz’s case would have been about ideology (“He’s too extreme!”), not about personal behavior, but the point remains:
The interesting question is what would happen if Republicans blow up the filibuster now and then Trump nominates someone “controversial” like Cruz for the next vacancy, with only 51 votes needed to confirm. Collins and Murkowski could walk under those circumstances too, but I think it’d be much harder for them to betray the party on a vote to confirm the nominee than it would to betray the party on a vote to get rid of the filibuster. There are all sorts of principled arguments you can make for the latter — it’s a glorious Senate tradition, we shouldn’t lightly discard the minority’s power to obstruct, yadda yadda. There’s really no principled argument you can make for voting no on the nominee himself. The argument would be “I don’t like Cruz even though he’s very smart, he’s Trump’s choice, and he would be a very dependable conservative vote on the bench.” That’s harder to explain to Republican voters.
If the filibuster were still intact, Collins and Murkowski would have an easy out here. “We’re still weighing the accusations against Judge Kavanaugh,” they’d say, “but taking a measure as extreme as ending the filibuster would make an already highly charged partisan debate that much more bitter. Regardless of where one stands on the nominee, we should stand by a tradition that has served us well and leave the filibuster intact.” And Kavanaugh would be done, just like that. They’d never get to 60 votes to confirm him. There’s no way red-state Democrats would provide the votes to do it. In fact, they’d hide behind the same logic as Collins and Murky: Whatever one thinks about Kavanaugh is a separate question from what one thinks about the important parliamentary yadda yadda yadda of the filibuster.
But because Schumer made the short-sighted, bone-headed move that he did, Kavanaugh still stands a chance of being confirmed. Red-state Democrats are likely going to be forced to cast a hard “no” vote on him soon. And if the nomination goes down, as much as righties will be angry at Collins and Murkowski, it’ll be their local Democratic senator back home who stands to bear the brunt of their displeasure in November.
Unless, of course, there’s a dam break after Ford’s testimony this morning and Kavanaugh’s nomination goes down hard, with many Republicans voting no.
Bookmark this post now, by the way, because we may have cause to revisit it with the next nominee, and sooner than you think. There won’t be any rape allegations involved in that one (dear God, let’s hope) but it’s possible that Collins and Murkowski will be willing to confirm an Amy Coney Barrett but would *not* have been willing to blow up the filibuster for her in an alternate universe where the filibuster still existed. If Barrett ends up on the Court thanks to 51 Republican votes, the dopey lefties who chose to fight and die on Gorsuch Hill will have themselves to thank.
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