The Supreme Court Fight.

Deciding how best to fight Trump’s Supreme Court nominee Neil Gorsuch, is an exceptionally difficult problem and one where I see both sides.

 Let’s start with what should clearly happen. Senate Democrats should vote no on Trump’s nominee. (Possible exceptions are the five Democrats who hold seats in states Romney won, particularly Heidi Heitkamp in North Dakota and Joe Manchin in West Virginia.) Gorsuch should be grilled at the hearing as thoroughly as possible. Pressure should be put on the perhaps three or four Republicans who could in theory be persuaded to vote no if the nominee was to spring an ethics or other leak. Anything less would mean they’re not doing their job.

But from that point on, the decision becomes murkier. A fierce debate will ensue over what should happen next. Democrats control 48 Seats in the U.S. Senate. (As a quick reminder in the years 2012 and 2014, Democrats lost three seats and thus majority control by a grand total of 56,000 votes.) So that means a filibuster will be required to block Trump’s nominee for the Supreme Court. With a filibuster, comes the risk that the Senate will vote to end the filibuster on Supreme Court nominee, claiming only 50 votes are required. They would thus vote to permanently end filibusters on Supreme Court nominees and likely end the filibuster altogether. A filibuster currently requires 60 Senators to invoke cloture to close debate otherwise debates can continue on, in theory forever. Ending it would mean that 50 plus the vice president might be all Trump needs for everything he wants to do.  Ending the filibuster could mean the Senate would not be able to slow down the functioning of government. 

Democrats also face a very serious Senate challenge in the long term. The states are currently aligned against Democrats both in the coming election in 2018 but also in many elections to come. Trump won 30 States, Clinton won 20 States. Even moving the four states Trump won by the closest margin to the Democrats  (Pennsylvania, Michigan, Florida and Wisconsin) would still give Republicans 26 states, to Democrats 24 states. Democrats currently hold five seats in states Romney-won; Republicans hold three seats in states Clinton won. In states that voted for Obama twice but Trump this year, Democrats hold six seats and Republicans hold six seats. This gives the Republicans an advantage in retaining and perhaps even expanding their Senate control.

The reasons to filibuster are as plain as day. Republicans refused consideration of a reasonable nominee so they could in effect steal this seat. With this seat stolen, the cases coming out of the Supreme Court will be much worse and Supreme Court damage is among the absolutely hardest to change. Once a case has been decided, it often takes upwards of 50 years, if not more, to ever see it overturned. It is unclear just how long Democrats could hold this seat open but a desire to see it held open for as long as possible makes incredible sense. Forcing Republicans to blow up the institution to get what they want also makes some sense. The filibuster has been abused for years and certainly during the Obama presidency. Its death, while incredibly painful in the short term, might work to make the government function which is essential for small d, democratic health. So ending the filibuster might be worth it, regardless. 

Yet, our eye needs to be focused on the 2018 Senate elections. Democrats are defending 10 of their 11 Trump state seats, versus Republicans defending one Clinton state seat.  So the Supreme Court will clearly be a vocal point of the election. To persuade Montanans and Missourians, from two of the seats in play, we need a strong argument for why we are filibustering and why a vacancy needs to be held up indefinitely. Although the Republican argument for blocking Merrick Garland was quite weak, they had a majority and thus their blocking of his nomination did not require a filibuster. They thus did not have to consume all the Senate’s time and prevent the body from functioning, as a Democratic filibuster inevitably will. The presidential campaign also overshadowed the fight over Obama’s nominee. Midterms lack a consistent story line and thus the Supreme Court fight, if it is waged, will be center stage in 2018.

The proper strategy to pursue is exceptionally difficult. People who come down on either side of it should be treated with good will and not be considered traitors on the one hand or nasty partisans on the other. Being able to work with people who disagree on something like this is essential to a successful Trump opposition.