The filibuster will likely lead Senate Majority Leader Mitch McConnell to trigger the so-called nuclear option and end the use of the filibuster on Supreme Court nominees. In the view of some conservatives, that would leave the Democrats with less leverage when the next opening on the high court comes.
“That’s a dumb strategic move for Democrats,” one conservative strategist from an outside group said.
Democrats and Republicans have argued over whether Supreme Court nominees have always been held to a 60-vote standard in the past. But the threat of the filibuster has always been there, which may have led some presidents to choose less extreme nominees. With that threat gone, some conservative strategists argue Trump would have a freer hand when he makes his next selection.
“If McConnell gets to nuke it first round, ultimately that’s what Republicans want,” the strategist said. “If they nuke Gorsuch, it’s a no brainer that [next time] they’ll put up somebody really, really, really conservative. If they’re not forced to nuke it, I think they will think more strategically about who they select.”
A Republican member of Congress agreed that Senate Democrats are setting themselves up to face future nominees they’ll like even less, arguing that their filibuster plan is “really self-defeating.”
“If in fact you do away with the 60-vote threshold for the Supreme Court, which is to really keep outliers from being able to become Supreme Court justices, the next president, it could be President Trump, the base will drive them to appoint someone very extreme,” the GOP member of Congress said. “We’re not talking about Boy Scout next time.”
Senate procedures aside, other Republicans are steamed the Democrats are obstructing a nominee they see as qualified and reasonable, so they say the liberals are wasting political capital and personal goodwill.
“I think there’s been a pretty good faith effort here with this nomination to try to appeal to Democratic senators,” says Matt Beynon, a Republican strategist. “It’s going to give McConnell and Trump the opportunity to say, look, they’re just going to oppose whoever I put up.”
If Democrats give Republicans the one-two punch of allowing them to remove the structural need for any bipartisan votes and opposing their nominee along near party lines (two Democrats have said they’ll support Gorsuch), that leaves the Administration with little motivation to reach out to them for the next pick.
“The Democrats have made clear that they don’t want any Republican nominee to the Court,” says Leonard Leo, an adviser to Trump on Supreme Court nominations. “Under those circumstances, there is no incentive for the Republicans to negotiate. There is no incentive for the White House to engage in fulsome pre-nomination consultations.”
Senate Minority Leader Chuck Schumer disagrees, arguing on the floor this week that Trump didn’t seriously consider Democratic senators this time anyway.
“The Constitution doesn’t say the President shall appoint Supreme Court justices with the advice and consent of right-wing special interest groups,” Schumer said, citing the list of judges compiled by the conservative Heritage Foundation and Federalist Society. “President Trump didn’t consult the Senate. He never even considered it. He just consulted this list.”
Schumer and the other Democrats are facing crushing pressure from their base to obstruct Gorsuch and any of Trump’s appointments. They hope mounting a filibuster can give them the moral high ground if and when Republicans change Senate rules.
“Senate GOP is creating a false choice Judge Gorsuch or nuclear option in an attempt to avoid rules change blame,” Schumer tweeted March 30. “It just doesn’t wash.”
But behind the scenes, even members of his own caucus understand the uncomfortable position this really creates for Democrats. Sen. Claire McCaskill, a Democrat up for re-election in Missouri, a state Trump won, recently warned donors at a private fundraiser of the danger in blocking Gorsuch.
“Let’s assume for the purposes of this discussion that we turn down Gorsuch,” McCaskill said in audio provided to the Kansas City Star. “What then?” She mentioned Trump’s list of judges, calling Gorsuch “one of the better ones.” “So they pick another one off the list and then they bring it over to the Senate and we say no, no, no, this one’s worse,” she continued. “And there’s not enough votes to confirm him. They’re not going to let us do that too long before they move it to 51 votes.”
As McCaskill and other Democrats struggle with what to do, Republicans can watch the situation play out, confident that their nominee will make it on the Supreme Court one way or the other. “I think whether they want to admit it or not, this isn’t about strategy, this is about appeasing a base,” Beynon said of the Democrats. “It might be cutting your nose off to spite your face.”
With additional reporting from Zeke J. Miller