Why should the Democrats filibuster Gorsuch? The endgame…

I’ve heard friends and commentators lament, “Why should we filibuster if the GOP can go nuclear and get rid of the filibuster?”  Below, I lay out one immediate benefit and then three paths, each of which justifies a filibuster.
Gorsuch is too right-wing and lacks the temperament (see my Slate piece today). For a bunch of reasons, I have been persuaded that Gorsuch is probably to the right of Scalia. He has been elusive by any standard in the hearings, but a few things emerged: He signaled to insiders that he will probably overturn Roe v. Wade, as part of the Casey balancing test for overturning precedents (Gorsuch acknowledging that it’s “a precedent” does not save it from being overturned, particularly not in the way he carefully phrased his Casey-minded answer). Corey Brettschneider has analyzed Gorsuch’s writings thoroughly and found evidence suggesting that he might find that the Constitution grants fetuses a right to life, which would lead to a national ban on abortion. Brettschneider also finds a clear indication in Gorsuch’s dissertation that he not only opposed the right to marriage equality, but he demeaned that claim, approvingly of a Scalia passage that put gay marriage in the same category of unprotected claims as bestiality and incest. 
Moreover, beyond the whole unprecedented Garland travesty, there has never been a Supreme Court appointment during a criminal investigation of a president or a presidential campaign.
Let’s first acknowledge the benefits of delaying a fifth vote to uphold Trump’s immigration order (a.k.a., “#MuslimBan”). These cases are expedited, so the case would be argued sooner than usual.
But beyond that, the endgame has three paths, all on balance reasons to filibuster:
1. The GOP goes nuclear and permanently ends the filibuster for SCOTUS. Fine. Then let’s say the rest of the Justices stay on the Court. We take back the White House and Senate in 2020, and they can no longer filibuster a liberal appointment. Or if a seat opens after 2018, maybe we have taken back the Senate and we don’t need the filibuster anymore. (I note that it is an uphill battle to take back the Senate because the Democrats have to defend so many red-state seats, but if Trump is in the mid-30s approval ratings with the same kind of “strongly disapprove” numbers we see now in the mid-40s or more, I like our chances).
2. The GOP fails to nuke, the seat remains open, but meanwhile, the FBI investigation produces an indictment of Manafort, Stone, Flynn, etc., and we have a full blown FBI investigation of the President in 6 months with subpoenas and hearings. I don’t see the GOP moderates going nuclear then, and the seat remains open for a while, maybe past the 2018 elections, maybe until 2021.
3.  The GOP fails to nuke, the seat remains open, but Trump holds off on scandal and indictments of his campaign staffers long enough to make another appointment. Maybe nominee will be less right-wing than Gorsuch. We know Gorsuch is going to be close to Scalia, and perhaps even more conservative overall in areas like abortion/fetal rights, the death penalty and jury rights. He will be a 5th vote to undermine voting rights, and many other rights, including gay marriage. Maybe another nominee will be more moderate, maybe not. Who knows? Let’s cross that bridge when we get to it. If they don’t have the votes to go nuclear for Gorsuch, then I’d guess they’d lack the votes for going nuclear for a clearly more right-wing nominee.
Some have said, “Don’t waste the filibuster now! Use it for the seat that might tip the Court on Roe v. Wade!” First of all, if not now, when? Gorsuch is the nominee now. Who knows if there will be another opening? And moreover, if you’re worried about the Senate GOP going nuclear now, why won’t they go intercontinental ballistic nuclear when they are finally getting their fifth vote to obliterate Roe?  If we don’t filibuster now, there’s not going to be a successful filibuster ever.

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. JD/PhD in History, Yale. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I filed an amicus brief in the Emoluments litigation against Trump along with a great team of historians. I'm working on "The Rise of the Prosecutor Politicians," a history of prosecutors and political ambition (a cause of mass incarceration), and "The Imaginary Unitary Executive," on the myths and history of presidential power in America.

One thought on “Why should the Democrats filibuster Gorsuch? The endgame…”

  1. Your Slate article on Gorsuch’s dissent in the trucker case was very, very good. I can’t thank you enough for saying so well what I thought when I read that dissent. I am an everyday employment defense lawyer; I understand his interpretation of the statute, I would even be called upon in my job to make that argument and I would do so with good will and a straight face. But I find his snide, condescending tone–flippant and mean much like Scalia–disheartening and demoralizing. If I used that tone in my briefs or oral argument, the court would caution me about losing my sense of civility, opposing counsel would not trust me, and most of my business clients would worry that I was losing control. That so-called analogy ending in “good luck,” standing alone, disqualifies him in my eyes.


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