Littwin: Bennet won’t support Gorsuch filibuster, but says it’s complicated

First the news. Michael Bennet tells me he’s not going to vote to filibuster Neil Gorsuch.

“I don’t think it’s wise for our party to filibuster this nominee or for Republicans to invoke the nuclear option,” Bennet says.

That makes him the fourth Democratic senator to break from the ranks, and the only one from a state that voted against Donald Trump. Republicans still need four more Democrats to defect to block a filibuster, and, at this point, it seems unlikely they’ll get them.

This vote was always going to be a lose-lose proposition for Bennet. He would either have to enrage the Democratic base with a decision that looks like heresy — which is what he’s done — or vote against a fellow Coloradan who is strongly supported by the downtown legal and business establishment, which, not coincidentally, generally supports Bennet. Gov. John Hickenlooper laid out the case when he said he wouldn’t blame Democrats for trying to delay or block Gorsuch after the Merrick Garland fiasco, but that he was “honored” a Coloradan as talented as Gorsuch was nominated.

But the decision is more complicated than local politics. And it’s more complicated than Gorsuch’s obvious qualifications. Bennet’s vote for cloture is not simply a vote for Gorsuch. Bennet says, in fact, that if Republicans go nuclear, “all bets are off,” presumably meaning that if it comes to an up-or-down vote, he’s going to vote down. And no wonder.

When I ask Bennet to describe his view on Gorsuch as a potential justice, he responds “very conservative,” and not in a good way. He means it in the way Gorsuch decided the Hobby Lobby case and dissented in the “frozen trucker” case — taking a strongly pro-business slant in which for-profit businesses can have religious beliefs and praying-for-their-life workers can be fired for choosing not to freeze to death.

Bennet’s vote is to try to save the Supreme Court filibuster, which may be the Democrats’ only hope of blocking future Trump nominees who Bennet guarantees will be “far more extreme.” It’s a long-shot hope. Mitch McConnell has promised to use the nuclear option — ending the filibuster for Supreme Court nominees as Harry Reid did for all other lifetime judicial nominees in 2013 — if Democrats filibuster Gorsuch. But if Republicans are prepared to go nuclear over Gorsuch, they can go nuclear at any time. There may be nothing to save.

Bennet, whose case would be stronger if he unequivocally said he would oppose Gorsuch in an up-and-down vote, says opposing the filibuster is worth the risk. Otherwise, Democrats are putting all their chips on a bet they know they can’t win.

“If the nuclear option is invoked,” Bennet is saying by phone from his Washington office, “that means Gorsuch will be confirmed on the court with a 50-plus-1 vote. He’s going to be confirmed either way. But then the next justice will be confirmed with a 50-plus-1 vote. And the next justice.

“Trump might get two more nominees in his first term as president. Having a 51-vote threshold guarantees that you’re going to have far more extreme nominees.”

That’s the danger. Very conservative Gorsuch would replace very conservative Antonin Scalia. But the three oldest justices on the bench are swing vote Anthony Kennedy, who’s 80, liberal Stephen Breyer, who’s 78, and very liberal Ruth Bader Ginsburg who, though she figures to live forever, is 83. All three, it should be noted, are votes in favor of keeping Roe v. Wade. If Trump replaces even one of them, that would probably swing the balance of the court against Roe. If he replaces all of them — and this is where someone raises the point about elections mattering — conservatives could have a 7-2 majority.

So, this is the crux of Bennet’s argument. Yes, Merrick Garland should have been nominated, and, yes, the liberal wing should have a 5-4 majority and, yes, McConnell did basically steal the seat, and, yes, Democrats should not just back away from that insult, and, yes, Gorsuch is a very conservative jurist who could be on the court for 30 years or more, and, yes, the Democrats risk giving Trump a victory at a time when he is floundering at every turn and, yes, the danger of thinking too long-term in politics is that you never really have any idea what will happen tomorrow.

But this is what could happen next. Trump’s approval ratings, already at historically low ratings at this point in a presidential term, could continue to slide. He’s around 40 percent now and could easily fall another 10 points. Is there a point at which Republicans abandon him? The 2018 and 2020 elections are the places to look. And if the filibuster remains in place, will Republicans, with a truly unpopular president and with the prospect of supporting a truly extreme nominee and with the future of Roe in the balance, vote to overturn it then?

Overturning Roe has been the holy grail for Republicans ever since it was decided, but it would almost certainly be a political disaster for them. And if three Republicans abandon Trump at the next nomination — which Ted Cruz is already predicting will look like Armageddon — the Supreme Court filibuster, should it still be alive, could be saved.

This is the argument Bennet has been trying to sell. “I’ve been spending weeks in conversation with Democrats and Republicans trying to put the genie back in the bottle, to get people to understand what the stakes are,” Bennet says. “I’m not very optimistic that any of this is going to bear fruit. But it’s gut-check time now. Are Democrats really going to filibuster the nominee? Are Republicans really going to use the nuclear option?”

Bennet makes a rational case. But we live in an irrational time. Do you fight Trumpism strategically or do you fight it at every turn? Senate Democrats, with their 48 votes, are at a loss and have done nothing to prepare the base for what happens when Democrats inevitably lose the Gorsuch vote. At this point, it’s all about resistance. And though Bennet makes a good case, at this time, with this president, it’s hard to see how the Gorsuch fight could be about anything else.


Photo courtesy of Senate Democrats via Flickr:Creative Commons



  1. Sen Bennet’s argument is BS bc McConnell would remove 60 vote option next time. We all know how Bennet is playing games. Why doesn’t Bennet say how he’s voting on Gorsuch? Because he’s conflicted with his connection to Ansultz. #copolitics

  2. The filibuster is dead already, because Democrats are afraid to use it, proving to themselves what we constituents already know: Use it or lose it. The only meaningful vote on Gorsuch comes when Mitch invokes Cloture. The Senate died when Mitch, in the minority promised to do everything possible to make sure President Obama only had one term. We the People suffered from the most “do nothing” Congress in history. Gorsuch is a just smug dodger who can find a precedent to justify any ruling he wants to make. Any lawyer can do that. The die was cast when Republicans won the Senate in 2014. Hold tight to whatever you value most.

  3. No Senator Bennett, we don’t worry about next time, we worry about what’s in front of you now! There is no assurance of what we will face in the future. The wolf is at the door now. Either he’s going to eat you or you are going to shoot him. If he eats you there is no next time, period!



  5. What is Bennet saving the filibuster for?

    1. Republicans could not pick a judge who is worse than Gorsuch, who is every bit as extreme as Scalia was.

    2. If we let Gorsuch on the Court now, what makes anyone think he won’t blowup the filibuster next time when a Judge who will shift the ideological balance of the Court is nominated.

    Remember, Lucy NEVER lets Charlie Brown kick the football.

    3) It’s a STOLEN SEAT. I wouldn’t care if the GOP nominee was Mother Teresa. The seat was not Trump’s to fill. It was Obama’s, and the Democratic Party should block any attempts by the Republicans to fill it – for as long as it takes.

  6. I always had that sickening feeling that Bennett had no backbone. He had his chance to grow a pair, but looks like he never will.

  7. Unless Bennet had conversations and received commitments from Republican Senators that they would vote to maintain the filibuster for the remainder of their terms, commitments they would go public with, his strategy is a lose now AND lose later approach. There wouldn’t even be an upside for making Republicans declare their approach of partisanship over comity and tradition.

    I do think Democrats should announce NOW that if they regain a majority, they will reinstate the rule requiring a super-majority for confirmation of Supreme Court and Circuit Court nominees.

  8. Well, then I’m hoping for a primary challenge for the senator. A STRONG one. I was really hoping that this man would have enough backbone to stand up for the COUNTRY. I was wrong.

    NOTHING Rump wants should be allowed to go through until ALL the questions of his campaign and his connections to Russia are answered. There are SERIOUS concerns about his loyalty to this country and they need to be answered before a SINGLE thing is allowed to affect the country. This disaster of a “presidency” is already destroying our international credibility and doing real damage to our society. He shouldn’t be allowed to destroy our future, too.

  9. Complicated, my eye. You picked money and career, Mr. Bennett. It’s complicated contradicting what Mr. Anschutz wants, isn’t it? Aren’t any of you representatives reliable?

  10. I left a message for Senator Bennett in his D.C. office that I expect him to filibuster Gorsuch. I’m a two decade military wife and a Democrat who voted for Bennett in 2016. IF BENNETT DOES NOT FILIBUSTER GORSUCH I will not only refuse to ever vote for him again, but I will also work for the campaign of a Democratic challenger next time. Seriously Senator Bennett, what are you “saving” filibuster for? Once the GOP takes over the Supreme Court they have all branches of our government under their thumb. There is ONE political party standing for civil rights, the environment and the average American citizen. There is ONE political party working everyday to strip citizens and our environment of every single gain we have made over the last 50 years…including going so far as to use the electoral college to elect a sociopath. You are either FOR Americans or your are FOR the GOP. You need to carry much more deeply felt convictions to your Country than this to serve as MY SENATOR. My family has served and is still serving this Country for decades, I expect it to LIVE UP to the ideals expressed in our founding documents…not lower itself to an oligarchy run by billionaires.

  11. Sen Bennet- We must fight at every turn bc trump and his clansmen are taking advantage of everything they can. Fight for the people of the US!

  12. Geez, Mr. Littwin – you certainly have some paranoid followers. From some of the comments posted, you’d think that President Trump was the devil incarnate and that Judge Gorsuch was his Beelzebub.

    Chill, people. The world isn’t coming to an end anytime soon.

  13. This isn’t complicated. If Bennett were the 41st vote blocking cloture he would filibuster. Pretending to not block Gorsuch gives him some political cover in Colorado.

    Hopefully this vote will be the worst of both worlds for Bennett. Dems will be mad that he didn’t filibuster and Republicans will see that he’s a partisan follower and not a leader representing our state.

    To all you Dems opposing Gorsuch the Democrats are forcing a change to the rules of the senate. You don’t like it, but he was unanimously confirmed previously, objective parties see Gorsuch as highly qualified and his record on reversals (or lack thereof) is outstanding.

    The senate’s role is advice and consent. While the Dems don’t like Gorsuch, and likely wouldn’t like any originalist that President Trump would nominate, Gorsuch is highly qualified and will be confirmed this week.

  14. JA- well, if you’re comfortable with a guy who rules in favor of corporations pretty much 100% of the time, then I suppose that’s your choice. But given a choice of a man freezing to death in faulty equipment the company sent him into deadly weather in, endangering others on the road by driving that faulty equipment in miserable conditions, or going 1/2 an hour away, warming up, and coming back when the mechanic was there, I know which one I would choose. The man was fired for leaving and coming back in a truck they sent him out in with NO heater, and Gorsuch ruled that the company was TOTALLY justified in firing the man. If he had stayed, he would be dead. THIS is what we have to do to keep a damned job?

    Sorry, but I would prefer a guy who WASN’T fascist in college, thanks. I don’t think you wash that off so easily. And his rulings show that when it comes down to it, the corporation rules every time. I think we can and MUST do better than this. This is what leads to fascism as a state policy, and we DO NOT need that.

    We can and MUST do better than this man. Or you can just give up and turn the whole place over to the rich and big business. Because that is who he thinks should own ALL of it.

  15. Bennett himself said Gorsuch was was highly qualified when he introduced him. Your issue is with Bennett, not me.

  16. JA,

    I enjoyed your comment and hope you’ll continue to contribute.

    Please do not allow one uninformed opinion to affect submitting future comments. This from

    Was Neil Gorsuch, the supreme court nominee, the president of a “Fascism Forever Club” in high school?

    Despite what his 1985 yearbook says, Judge Neil Gorsuch did not start a “Fascism Forever Club” at Georgetown Preparatory School. As a joke, the Supreme Court nominee wrote that he founded the nonexistent club, according to his former student government adviser.

    “The club never existed,”said Stephen Ochs, a history teacher who also advised Gorsuch as a member of the student government. Ochs told us that Gorsuch listed the club in his yearbook profile as “an inside joke” between himself and some of his liberal classmates.”

    What puzzles me is Mr. Littwin’s unwillingness to restate his unabashed,unambiguous and unequivocal opposition to the Senate filibuster. Here’s what he wrote in 2013:

    “The filibuster is not quite dead. As Miracle Max would explain, it’s just mostly dead.

    But excuse me if I don’t weep in either case.

    If the filibuster is gone — or mostly gone — that’s a good thing. It’s a good thing if it’s bad for Republicans. It’s a good thing if it’s bad for Democrats. Either way, it’s still good for good government.

    When Harry Reid threatened to finally press the nuclear button — and, please, no more mushroom-cloud metaphors — Senate Republicans warned him that he’d rue the day. He probably will. And if Republicans win back the Senate in 2014 — which they might — the day could come sooner than he hoped.

    And that’s fine, too.”

    Maybe it’s because of the overwhelming support for the filibuster as the weapon of choice to block the ascension of Neil Gorsuch to the Supreme Court by those unable to accept the reality of President Trump in the White House.

    Or maybe, just maybe, Mr. Littwin is to (what’s a nice word for gutless?) timid to state views unpopular with the overwhelming majority of his readers.

    Mr. Littwin is to courage what Mrs. Clinton is to success.

  17. JA- I wasn’t attacking you, it was merely for informational purposes. Sorry if you took it personally, it wasn’t meant that way.

    I just wanted you to know what kind of person you’re thinking won’t be an issue. He most definitely will be. And yes, my issue IS with Mr Bennett. I think he’s wrong and should think about the future of the country far more than the image issue for the state.

Comments are closed.