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Memo to Democratic senators: If you like your job, filibuster Gorsuch

If you’re a Democrat who wants to win your next election, maybe you don’t want the Supreme Court to endorse voter suppression.

CREDIT: AP Photo/Susan Walsh
CREDIT: AP Photo/Susan Walsh

Let’s briefly take stock of what happens — quite possibly before the next election — if Donald Trump’s Supreme Court nominee, Neil Gorsuch, is confirmed by the Senate.

All four of the Supreme Court’s Republicans voted to reinstate North Carolina’s omnibus voter suppression law before the 2016 election — most likely the most aggressive law of its kind since Jim Crow. If Gorsuch is confirmed, he is highly likely to add a fifth vote to uphold such laws.

Next term, the Supreme Court is poised to hear the most promising challenge to partisan gerrymandering in more than a decade. Gorsuch is overwhelmingly likely to vote to allow such gerrymandering to continue.

If you are a Democratic senator, and you’d like to keep your job, you don’t want Neil Gorsuch on the Supreme Court.

With Justice Antonin Scalia’s death, the Supreme Court lost the majority that decided the Citizens United case, which opened the floodgates of money seeking to influence elections. Gorsuch is all but certain to restore that majority, if confirmed.

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Scalia’s death also striped Republicans of the majority they needed to defund many public sector unions. Confirming Gorsuch will almost certainly restore that majority to the GOP.

Obviously, there are other reasons why a Democratic senator might object to Gorsuch — his votes to limit women’s access to birth control, his attempt to defund Planned Parenthood, the unanimous Supreme Court decision rejecting his effort to weaken a key law protecting children with disabilities — but the examples listed above all share one thing in common.

North Carolina-style laws target groups that tend to vote for Democrats. Gerrymandering helps keep the U.S. House and many state legislatures in Republican hands. Citizens United gives an advantage to conservative groups. And unions are a major prong of the Democratic Party’s political infrastructure.

If you are a Democratic senator, and you’d like to keep your job, you don’t want Neil Gorsuch on the Supreme Court.

The case for capitulation

Nevertheless, a handful of Democratic senators are uncertain about whether they should vote to give control of the Supreme Court — and with it, the Constitution — to five Republican men. One of these Democrats, Sen. Michael Bennet (D-CO), even went so far as to introduce Gorsuch at the judge’s confirmation hearing.

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In a leaked recording obtained by the Kansas City Star, Sen. Claire McCaskill (D-MO) laid out several reasons, some of which have been offered by other Democrats, why she is cautious about voting to block Gorsuch’s confirmation. Gorsuch, she claims, “was one of the better ones” on the list of 21 names Trump released of people he might potentially appoint to the Supreme Court.

So she fears that blocking Gorsuch will simply lead to Trump naming someone she likes less. And then, if Democrats try to block that nominee, Republicans “are not going to let us do that too long before” they change the Senate’s rules to ensure that the nominee is confirmed.

Additionally, McCaskill claims that, if Democrats hold their fire today, Republicans may become more restrained tomorrow. Under the current rules, it takes 60 votes to break a filibuster of a Supreme Court nomination, but Senate Majority Leader Mitch McConnell (R-KY) can invoke a process that allows him to lower this threshold if a majority of the Senate supports such a rules change.

McCaskill fears that, if Democrats filibuster Gorsuch, Republicans will invoke this process and then all future nominees can be confirmed by 51 votes. Then, if “God forbid, Ruth Bader Ginsburg dies, or (Anthony) Kennedy retires or (Stephen) Breyer has a stroke or is no longer able to serve,” Democrats will be unable to filibuster a nominee who would move the Supreme Court even further to the right.

He really is that bad

Let’s take McCaskill’s first argument first: the idea that Gorsuch isn’t as bad as the next person in line for the seat.

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Gorsuch isn’t Harriet Miers, the underqualified adviser that President George W. Bush briefly tried to put on the Supreme Court. But, then again, neither were the other names on Trump’s list of potential nominees. The people on that list are very conservative, but they largely consist of people who have the traditional qualifications that presidents look for in potential justices.

Ideologically, however, Gorsuch isn’t just one of the most conservative names on Trump’s list. He is one of the most conservative judges on the federal bench.

On abortion, Gorsuch didn’t just attempt to defund Planned Parenthood in Utah, he wrote a book that is thick with the sort of rhetoric used by abortion opponents. He is almost certainly a vote against Roe v. Wade.

On LGBT rights, Gorsuch’s views in cases like Hobby Lobby don’t just have implications for women seeking birth control, they potentially offer a road map for anti-LGBT business owners who claim the right to violate anti-discrimination laws.

Indeed, Gorsuch even took a swipe at the rights of one of the most vulnerable populations in the country: disabled children. In a 2008 opinion, Gorsuch held that schools comply with a federal law governing education for people with disabilities so long as they provide educational benefits that “must merely be ‘more than de minimis.’

The Supreme Court unanimously rejected this approach, with Chief Justice John Roberts writing that “a student offered an educational program providing ‘merely more than de minimis’ progress from year to year can hardly be said to have been offered an education at all.”

Indeed, while Gorsuch has not opined on every issue to reach the Supreme Court in recent years, the views he has expressed largely track those of the Court’s most conservative member, Justice Clarence Thomas. Some of Gorsuch’s opinions suggest that he may want to completely hobble landmark legislation such as the Clean Air Act

From a liberal’s perspective, Trump may be able to find someone as bad as Gorsuch if Gorsuch’s confirmation is blocked, but it would be quite an accomplishment to find someone worse.

It’s time for some game theory

That leaves the other question of what happens next if Democrats attempt to filibuster Gorsuch: the future of the filibuster.

If Republicans don’t have the votes to nuke the filibuster and lower the threshold for confirmation, Gorsuch will be kept off the Supreme Court — a fantastic outcome for Democrats. If Republicans do have the votes, Gorsuch will get confirmed to the Supreme Court — the exact same outcome that would result if Democrats simply let Gorsuch through.

But what of McCaskill’s belief that, by saving their fire and preserving the filibuster, Democrats can prevent Trump from placing another Gorsuch on the bench if Kennedy, Ginsburg, or Breyer leaves the Court?

It’s unclear why a party that took the extraordinary step of holding a Supreme Court seat open for an entire year in the hopes that Donald Trump would get to fill it would suddenly revert to less-than-maximalist tactics just because a new vacancy opened on the Court.

And should a new vacancy open up, there would be considerable interest group pressure on Republican senators to fall in line. Just one conservative group, the Judicial Crisis Network, spent $10 million to help confirm Gorsuch. That tremendous amount of money represents a warning to wavering Republican senators that well-heeled groups will come after them if they stand in the way of a confirmation.

Indeed, the fate of the Supreme Court was probably sealed in 2012, when six-term incumbent Sen. Richard Lugar (R-IN) lost his primary to a relatively unknown Republican challenger by more than 20 points. Lugar’s votes for Obama-appointed Justices Sonia Sotomayor and Elena Kagan played a major role in the campaign against Lugar. The National Rifle Association ran ads attacking Lugar for supporting “both of Barack Obama’s anti-gun nominees to the Supreme Court.”

Republican senators know, in other words, that they risk becoming the next Dick Lugar if they cross conservative interest groups on the Supreme Court. Confirming Gorsuch as a peace offering won’t change that.