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