A Democratic Filibuster Attempt on Gorsuch Does Carry Some Political Risk

February 06, 2017

Democrats will certainly try to filibuster the confirmation vote of Judge Neil Gorsuch to the Supreme Court.

The question is, do 40 Democratic senators want to walk the plank on that fight? Like a time-traveler who cannot change the future, this scenario – barring some shocking previously unknown scandal around Gorsuch – ends with 52 Republicans and a handful of Democrats voting to confirm, replacing Antonin Scalia with a like-minded justice.

The Senate Democrats who will sweat this vote include Tammy Baldwin of Wisconsin, Michael Bennet of Colorado, Sherrod Brown of Ohio, Bob Casey of Pennsylvania, Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, Amy Klobuchar of Minnesota, Joe Manchin of West Virginia, Claire McCaskill of Missouri, Bill Nelson of Florida, Debbie Stabenow of Michigan, and Jon Tester of Montana.

These are all states that either Trump won in 2016, or were pretty close. (Trump finished within a point and a half in Minnesota and within 3 points in Colorado. We might even throw in Virginia's Tim Kaine; Trump was within 5 points in Kaine's home state.)

Freedom Partners is eager to point out that Donnelly, McCaskill, Tester, Heitkamp, Stabenow, Brown, Casey, Nelson, and Baldwin all contended during the nomination of Merrick Garland that the Senate had a duty to hold an up-or-down confirmation vote on Obama's nominee. (Constitutionally, the Senate doesn't, but you can argue an up-or-down vote is needed to respect the chamber's tradition or comity. Of course, once you start insisting that a judge deserves an up-or-down vote, one wonders why this didn't apply to appellate court nominees like Miguel Estrada, Charles Pickering, and Carolyn Kuhl in 2005.)

Democrats walked away from the 2016 election results, and Merrick Garland's fate as a Trivial Pursuit answer, concluding that there is no price for blocking a Supreme Court nominee.

But how many Democratic activists really got fired up about Garland last year? The animating drive among the progressive grassroots in 2016 was how awful Trump was, not how awesome Garland was. Maybe it's because he was seen as a moderate, compromise pick, or maybe there was just too much other news going on throughout the year. Either way, no Democratic Senate candidate ran a television commercial on the issue of Garland's nomination. No major Democratic figure mentioned his nomination during the party's convention in Philadelphia. Hillary Clinton barely mentions Garland on the campaign trail, and has indicated that she might nominate someone else if elected.

Meanwhile, grassroots conservatives are genuinely thrilled with the Gorsuch pick. People who aren't so delighted about Trump himself are elated over the excellence of his first judicial nomination. It is plausible to argue that Gorsuch matters to grassroots conservatives a lot more than Garland ever mattered to grassroots progressives.

Assume that some Democratic senators who insisted the Senate had to vote on Garland turn around and choose to filibuster Gorsuch. Pick any handful out of Donnelly, Nelson, Stabenow, McCaskill, Tester, Heitkamp, Brown, Casey, Kaine, Manchin, and Baldwin.

Fast forward to autumn 2018. Do you doubt groups like Judicial Crisis Network, Freedom Partners, Americans for Prosperity, and Heritage Action will be running ads hitting those Democratic senators for their partisan flip-flop? "Senator X said every judicial nominee deserved a vote… and then turned around and tried to block Justice Gorsuch." It will be a midterm electorate, meaning older, whiter, more conservative, in a bunch of older, whiter, and more conservative states…

Sure, Chuck Schumer concludes there's no political price for blocking a Supreme Court justice. But are all of those red-state Democrats willing to bet their careers on it?

Not Even My Contractor Takes This Long to Get a Cabinet in Place

Speaking of obstruction, I understand that Democrats are still really bitter about the 2016 election, but this is getting ridiculous:

Democrats, many of whom openly loathe Trump and are furious over his refugee crackdown — which Democrats describe as a "Muslim ban" — and other executive actions, have used all the procedural arrows in their quiver to slow down confirmation of Trump's Cabinet nominees. They've boycotted committee meetings, refused to let panels meet in the afternoon, dragged out votes as long as possible, and refused to agree to even normal floor requests. They are voting against Trump's Cabinet picks in unprecedented numbers, arguing that Trump doesn't deserve even a patina of partisan support.

And their tactics have been partly successful.

The Senate's confirmation of Trump's Cabinet is the slowest in modern history, spanning back to President Dwight D. Eisenhower. Presidents Jimmy Carter and Ronald Reagan had their whole Cabinets confirmed at this point; Presidents Bill Clinton, George W. Bush and Barack Obama were nearly finished; and even George H.W. Bush had nine of his Cabinet secretaries in place despite opposition from a Democratic Senate.

Come on, man. I can understand the opposition to a game-changing, consequential pick like Betsy DeVos. I can understand the Democrats' need to placate their base by opposing Jeff Sessions in every way possible. But tell me, what's the advantage of slow-walking Ryan Zinke's nomination to be Secretary of the Interior? Or Sonny Purdue's nomination to be Secretary of Agriculture? The nominee to be Secretary of Veterans Affairs, David Shulkin, is a holdover from the Obama administration! This isn't reasoned or justifiable opposition, this is obstructing nominees for the sake of obstruction.

This Is Why Second Chances Are Often One-Time Offers…

I love criminal justice reform and I love groups like Defy Ventures, who try to help convicted criminals turn their lives around and become law-abiding, productive, proud members of society. But it's fair to acknowledge sometimes a person will be given a second chance… and blow it mightily:

Robert M. Gill 68, whose life sentence for cocaine and heroin distribution conspiracy was commuted by [President] Obama and expired in 2015, was profiled last year in the San Antonio Express-News about his readjustment to life on the outside.

Jailed from the time of his arrest in 1990, Gill earned a legal education inside prison libraries and successfully petitioned the then-president for a second chance after his court appeals were exhausted.

Obama wrote in a signed notification that he granted Gill's application "because you have demonstrated the potential to turn your life around. … Now it is up to you to make the most of this opportunity."

[Cue ominous music.]

Gill is "back behind bars after allegedly crashing his vehicle into another motorist and undercover police cars while fleeing from a drug deal Thursday."

He was taken to federal court Friday, and U.S. Magistrate Judge Henry Bemporad ordered him held without bond pending a bail hearing on Feb. 16. Gill is charged with possession with intent to distribute 500 grams or more of cocaine.

He again faces a potential sentence with a mandatory minimum, five years, and could get up to 40.

ADDENDA: What a game! Congratulations to the New England Patriots, as Bill Belichick and Tom Brady solidify their claim to be the greatest coach and quarterback of all time. For about three quarters, I thought I had genuinely jinxed them by rooting for them, and had acquired inadvertent powers over time and space.

Man, who could blow a 28 to 3 lead like that?

I mean, besides her.

Big weekend for the pop culture podcast, so thanks to everyone who listened. The argument about the worst song of all time seemed to take over Twitter Friday afternoon.