Democrats Are Trapped on Gorsuch and the Filibuster
What Republicans did when President Obama nominated Judge Merrick Garland to the Supreme Court has added to the resolve of many Democrats to fight President Trump’s nomination of Judge Neil Gorsuch. But what Democrats said back then stands in the way of their effort to fight him.
Senate Republicans refused to take up the Garland nomination. Democrats said that the Republicans were taking partisan obstruction to a dangerous new level. It was a reasonable if not entirely convincing argument. But Democrats could not resist going further. In their outrage, they said that the Republicans’ treatment of Garland violated the Constitution.
Obama himself set the tone in a prepared statement: “Give him an up-or-down vote. To deny it would be an abdication of the Senate’s constitutional duty.” Some Democrats are still echoing this claim. “There’s no doubt what they did was wrong and unconstitutional,” Senator Jon Tester of Montana recently said.
Actually, the Constitution includes no provision requiring the Senate to take up a nomination. The Senate doesn’t have to hold hearings or a vote. But if you believe an up-or-down vote on a nomination is constitutionally required, you can’t in good conscience filibuster that nomination. In a successful filibuster, a large minority of senators (at least 41 of them) block the Senate from holding an up-or-down vote.
So will the Democrats filibuster Gorsuch’s nomination? Two Democratic senators -- Heidi Heitkamp of North Dakota and Joe Manchin of West Virginia -- have explicitly said they will not support a filibuster.
Several other Democrats say they support holding a vote on Gorsuch. Senator Jeanne Shaheen says, “Unlike the Republican majority, I haven’t heard any Democrats saying we don’t think that Judge Gorsuch should get a hearing or that he should get an up-or-down vote. Everybody I’ve talked to agrees he should get a hearing and an up-or-down vote.”
Her comment seemed to suggest that she will not join a filibuster. But Shaheen subsequently explained that when she said Gorsuch should have an up-or-down vote, all she meant was that there should be a vote on whether to hold a vote on his nomination.
Senate Democrats know that many liberals want a filibuster, but they also know that Gorsuch is a mainstream conservative judge and that filibustering him could just provoke Senate Republicans to abolish the power to filibuster Supreme Court nominations. Perhaps Shaheen is trying to equivocate in response to this dilemma: Saying something that seems to rule out a filibuster while denying that she is ruling it out.
But her position is especially absurd given the Senate Democrats’ options. Shaheen (like Democrats who speak similarly) is trying to get credit for things that she has no power to prevent. There are going to be hearings on the Gorsuch nomination whether or not Shaheen wants them, because the Republicans hold a majority in the Senate.
For the same reason, there will eventually be a vote on whether to proceed to a final vote on the nomination. The main choice Shaheen can make is whether to support moving to that final vote, or to a filibuster. If she is not willing to say which way she will go, she should stop patting herself on the back for being so accommodating.
Senator Shaheen was one of the Democrats who claimed that the Constitution required a vote on the Garland nomination. If she filibusters Gorsuch, she will prove that this claim was not just false but insincere.
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