Tuesday, March 28, 2017

Unwanted Advice

Tilting at windmills is one of my favorite hobbies, so I just can't keep myself from commenting on Democratic plans to filibuster Neil Gorsuch.  Sustaining a filibuster against Gorsuch would, of course, be tactically futile and strategically counterproductive for Democrats.  While rallying the "progressive" base, it would ultimately not stop Gorsuch's ascension to the Supreme Court; many Republican senators seem to be making the (not unreasonable calculation) that, if Democrats will filibuster the Gorsuch nominee, they'll filibuster any Trump nominee who is not David Souter II.  Moreover, the detonation of the "nuclear option" against this filibuster would destroy the (slight but still perceptible) leverage the minority party in the Senate has over a Supreme Court nominee.  Proponents of stacking the Supreme Court with right-leaning ideologues would not doubt celebrate this futile effort by Democrats, but a sustained Gorsuch filibuster might worry those who think that the Senate should protect the voice of the minority and the prerogatives of individual senators.

It seems as though at least a few Senate Democrats are aware of the fact that indulging in the calls of the "resistance" to sustain a filibuster against Gorsuch would mean actually weakening the powers of Senate Democrats.  There are reasons why Pat Leahy, a staunch leftist, is hesitant about filibustering Gorsuch.  He knows the political costs and the damage this could do to the Senate's culture.  It would further politicize the nomination process and further polarize the chamber.  In this divided time, it would seem important to protect the institutions of compromise and moderation, and the filibuster might be one of those institutions.

But how could Democrats not goad the GOP into nuking the filibuster while also not suffering too much of a backlash from the "resistance"?

Allahpundit has suggested that Leahy's announcement could be part of an effort by Senate Democrats to thread that needle:
A filibuster now would be the purest strategic idiocy and Schumer knows it. Solution, then: Endorse the filibuster in his role as minority leader while nudging Leahy, a Senate institution and Judiciary Committee veteran who almost certainly can’t be defeated in Vermont, to lead the rebellion instead. Now, when Manchin and Bennet and McCaskill et al. need to justify their votes in favor of cloture, they can point to Leahy and say, “Sen. Leahy’s judgment carries such heavy weight with me, especially in terms of getting politics out of judicial nominations, that I feel obliged to join him in this vote.” Leahy then becomes the lightning rod. But so what? He’s immune from this sort of political lightning. He’ll be just fine, and so will all of the red-state Dems who vote for cloture along with him once the left realizes that they’re in no positional electorally to further weaken their chances in 2018 by primarying any of them over their Gorsuch votes.
One could extend this strategy: A coalition of far-left Democrats from safe seats and Democrats who are up for reelection in lean-Republican states could vote for cloture on Gorsuch. The first set could have enough "progressive" credentials to ward off a primary challenge, and the second could be protected by the demands of electability.

According to CNN, two Democrats have already said they will vote for cloture on Gorsuch: Joe Manchin and Heidi Heitkamp (more or less).  That means 6 more will have to vote for cloture to break a Gorsuch filibuster.  Could those 6 votes be found?  Quite possibly.

If Democrats are worried about primary challenges, it would make the most sense to have senators reelected in 2016 vote for cloture on Gorsuch.  They have almost 6 years before they have to face voters.  Senator Leahy was reelected in 2016.  Michael Bennet, from Gorsuch's home state of Colorado, was also reelected in 2016 and has also been noncommittal about whether he will filibuster Gorsuch.  New Hampshire's Maggie Hassan is new to the Senate.  But she has a solid Democratic infrastructure in the Granite State (which could help her with primary challenges), and New Hampshire is a swing state.  Senator Hassan's fellow New Hampshire Democrat Jeanne Shaheen has sent mixed messages on a Gorsuch filibuster, stating that he kinda sorta deserves an "up-or-down vote."  Perhaps she and Hassan will vote as a block either for or against cloture.  Chris Coons, a solid lefty from Delaware, was reelected in 2014 and has warned about the risks of filibustering Gorsuch. Minnesota's Amy Klobuchar is rumored to be a swing vote on cloture; up for reelection in 2018, she represents a state (Minnesota) that Trump almost won in 2016.

That's 6 votes possible on the left right there.

There are also senators from swing states or lean-Republican states who have not yet expressed a position on cloture for Gorsuch: Angus King (I-Maine), Missouri's Claire McCaskill (who said she opposed the Alito filibuster), Joe Donnelly (Ind.), and Jon Tester (Mont.).

It seems possible that a center-left coalition could vote for cloture on Gorsuch with minimal risk of political backlash.  That outcome would probably be in the best interests of the Senate and of Democrats over the long term.

However, it's also possible that the Democratic caucus could hold hands and take the plunge on sustaining a filibuster against Gorsuch.  In an era when indulging the id has increasingly become a political priority, this outcome would not be at all surprising. But it still would be somewhat dismal.

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