Why desperate red-state Democrats are trying to float a ‘deal’ to let Supreme Court judge nominee Neil Gorsuch through.


Wall Street Journal
March 23, 2017

New York’s Sen. Chuck Schumer made history this week, in formally declaring his intention to break the U.S. Senate. Add this to the list of Democratic wreckage Republicans may now be obliged to fix.

That’s the best way to process the minority leader’s announcement Thursday that he will vote to filibuster the nomination of Judge Neil Gorsuch to the Supreme Court and urge his fellow Democrats to join him. Not even Mr. Schumer denies Judge Gorsuch possesses a singularly gifted legal mind and is eminently qualified for the court. His objection, instead, is that the nominee is “conservative.” This is apparently now a disqualifying attribute for any Supreme Court justice.

Not that Mr. Schumer’s announcement should count as news. In early January, before Donald Trump had even taken office, Mr. Schumer told MSNBC’s Rachel Maddow that it was hard for him to “imagine” any “nominee that Donald Trump would choose that would get Republican support that we could support.” He promised to do his best to keep the seat open the entirety of the Trump presidency. Democrats were always going to oppose anyone Mr. Trump picked. The president could have named Mr. Schumer himself to the high court, and Mr. Schumer would have filibustered—on principle.

The slow-rolling nature of the process has nonetheless masked the extraordinary new standard Mr. Schumer is setting, and the damage to the Constitution. He’s saying that every Supreme Court nominee will now require 60 votes to be confirmed. This is a massive shift—a break with the Founders’ vision of advice and consent, and an affront to two centuries of Senate history. It’s a declaration that Democrats will permanently wield the judicial filibuster as a political weapon, robbing the president and the Senate majority of the ability to appoint, and stripping the Supreme Court of a full complement of justices.

What makes the standard suddenly real is that Mr. Schumer can likely enforce it against his members. Never in U.S. history have we had a successful partisan filibuster of a Supreme Court nominee. In 1968 a bipartisan group of senators filibustered the proposed elevation of Justice Abe Fortas to chief justice, because he was a crook. The left edged nearer the precipice in 2006 with the attempted filibuster of Samuel Alito, but only 25 Democrats joined.

Since then, progressives have lost any fear of the electoral consequences of playing abject politics with the high court. The American Bar Association unanimously awarded Judge Gorsuch its highest possible rating. He floated through this week’s confirmation hearings. Liberal and conservative colleagues alike have praised him to the stars. Yet not a single Democrat—not even vulnerable moderates such as West Virginia’s Joe Manchin or North Dakota’s Heidi Heitkamp—has publicly supported him. Before this week’s drama had even ended, Democratic senators were queuing to oppose him.

Opposing a nominee is not the same as denying him a floor vote.  And progressive groups are promising that any Senate Democrat who fails to support a filibuster will face a primary challenge. Senate sources tell me there is good reason to believe Mr. Schumer can muster the votes to block the nomination.

Not that red-state Democrats are happy, as evidenced by news that some are floating a “deal” under which Democrats would allow Judge Gorsuch’s nomination to come to a vote in return for Republican agreement to keep the filibuster in place for future Trump nominees. The proposal is proof that some Senate Democrats are worried about being blamed back home for a partisan filibuster of an impeccable candidate.

It’s also ludicrous, because Republicans have no need to make a deal. They already have the power to invoke the “nuclear option”—as Harry Reid’s Democrats did in 2013 for all nominations except to the high court—and get Judge Gorsuch on the court, and they’d be irresponsible to commit to Mr. Schumer’s new filibuster standard going forward. The “deal” is a non-starter.
As to that nuclear option, bear the Schumer standard in mind as Democrats and the media gin up stories suggesting Majority Leader Mitch McConnell is about to do something outrageous. “I would not want to be the person . . . that basically changed the Senate from what the Founding Fathers” intended, Mr. Manchin told reporters this week. (The West Virginia senator was one of only three Democrats to dissent when Mr. Reid went nuclear in 2013.)

These comments aim at pressuring “institutionalist” Republican senators with an attachment to the chamber’s traditions. But it won’t be Mr. McConnell—an institutionalist among institutionalists—changing anything. It’s Mr. Schumer who is destroying the Founders’ principle of advice and consent. It will be Republicans, in exercising the nuclear option, who would return the Senate and Supreme Court to functioning order. It will be Republicans preserving the institution and its rightful powers.

If Mr. Manchin and fellow Democrats want to retain the filibuster for future, justified use, that’s simple. All they need do is refrain from abusing that power against a highly intelligent, perfectly qualified nominee. This is Mr. Schumer’s mess. Either his party can clean it up, or Republicans will do it.

Write to kim@wsj.com.

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