Daniel Hemel Lays Out the Progressive Case Against Filibustering Neil Gorsuch

The progressive case against filibustering Neil Gorsuch

Senate Minority Leader Charles Schumer appears to have secured support from 40 fellow Democrats for a filibuster of Judge Neil Gorsuch. That marks a short-term victory for the minority leader in his bid to block Gorsuch’s nomination.

In the long term, though, we think it will prove to be a strategic blunder, making it easier for President Donald Trump to fill a future Supreme Court vacancy with a conservative justice who will swing the balance on issues such as abortion, gay rights, and affirmative action.

The next moves in the parliamentary chess match are predictable. Senate Majority Leader Mitch McConnell will invoke the nuclear option to change Senate rules so that Supreme Court nominees can be confirmed on an up-or-down vote. All McConnell needs now is for 50 of the chamber’s 52 Republicans to vote for the rule change, with Vice President Mike Pence serving as a potential tiebreaker, and the filibuster for Supreme Court nominees will go the way of the dodo.

It would have been wiser for Democrats to hold their fire here and save the filibuster for an instance in which it might have made a difference. With a nominee whose views were less extreme or whose credentials were less sterling, the filibuster would have been a powerful weapon in the Senate Democrats’ arsenal. Here, it’s likely to be a dud.

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