Gorsuch < Russia: Why filibustering might not be worth the cost

The breaking news is that the Democrats have 41 votes to filibuster Gorsuch. I am happy to see the Democrats finally fighting back, but I am worried that their timing and a lost opportunity.

Don’t get me wrong. I have been following the Gorsuch nomination closely, maybe too closely for my own good. I have blogged about why the Democrats should filibuster for long-term strategic reasons. (Getting rid of the filibuster could be beneficial when the Democrats are back in the White House ASAP). I also wrote about his “frozen trucker” dissent in Slate, and how it suggests that Gorsuch may be a callous ideologue. Given how he evaded questions more than even the recent round of Supreme Court nominees, we don’t have a lot to go on, but his dissertation’s signals on gay marriage and fetal personhood, the “frozen trucker” case, and other parts of his judicial record raise significant concerns that he is not a “meanstream” conservative, but that he is probably to the right of late Justice Scalia. He is not an immediate threat to Roe v. Wade (he’d be the fourth vote to overturn it, not the fifth). But my issue is the death penalty and criminal defendants’ rights, and for those isues, he is more likely the fifth vote against my biggest concerns. Under other circumstances, I would agree with voting “no,” and in the past, I have suggested that filibustering a nominee is appropriate when the nominee is too evasive: if the nominee obstructs the confirmation hearing, the Senate should obstruct the confirmation.  On top of that, Garland, Garland, Garland. Or more appropriately, Obama, Obama, Obama.

I have been going back and forth in my head about this situation, and I keep going back to the image last week of Devin Nunes in the House, with Speaker Ryan’s support, sabotaging the Russia investigation, and a few days later, Senators Warner and Burr working together to move forward. I don’t want to read too much into Senator Burr’s performance, but it was a sign that some Senate Republicans are willing to cross party lines to investigate the Trump administration. If we had seen no such signs, the Senate Democrats should have played hard ball on everything. But the question now is that, with the Senate Republicans taking a small step forward on Russia, should the Democrats keep moving forward, too?

If I could tell you that allowing a vote on Gorsuch would make one Republican Senator  more willing to support the Russia investigation? What if that Senator were the deciding vote on a key committee? And what if filibustering Gorsuch might take that opening from Senator Burr and burn it? Burr is a descendant of Aaron Burr. He has a historic opportunity to make up for his family’s legacy by being a statesman more than ambitious partisan. I’m not suggesting that the Senate Democrats should disarm unilaterally, but I hope they are willing to talk through these two parallel fights, and work out some “understandings” to move forward on both fronts. A filibuster would not just shut down Gorsuch, it would shut down the Senate — not through the “talking” filibuster, but more practically shutting down any progress.

Moreover, I’d suggest one of the reasons so many Republicans — both voters in 2016 and the Congress now — have been so cohesive and partisan is that they are focused on filling Scalia’s seat. Everyone speculated that a number of evangelical conservatives and elite conservatives would stay home in November, but they were more slightly more unified as a party than the Democrats, shockingly. One reason was the open Supreme Court seat: it didn’t matter who would be making the appointment, as long as it was not a Democrat, and especially not Hillary Clinton.  There is a chance that once the Senate Republicans get their prize, they may be slightly more willing to compromise.

I’m not sure about any of this perspective. I am often too willing to compromise and to support taking the first step in order to promote compromise. But in this case, I think the Senate Republicans were taking the first step. The Gorsuch appointment will have an enormous impact on American law for 30 years or more. But Trump’s presidency will have an impact for even longer. Restoring just a little bipartisanship now can also start to reverse a course of mutual recriminations that is destroying our country. One seat on the Supreme Court is worth a lot, but resolving this threat is worth more.

 

 

 

 

 

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. Father of three, married to a Canadian, but I'm not laughing at any of the "So you really can move to Canada!" jokes in 2016. 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'm working on the Emoluments litigation against Trump, as well as a history of prosecutors and American politics, and another project on the origins of "independent agencies" in America.

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