It does not take a weatherman to tell which way the wind is blowing on Neil Gorsuch’s Supreme Court nomination. Gorsuch will be confirmed, one way or another. If Senator Charles Schumer makes good on his pledge to filibuster the Gorsuch nomination, the Republicans will exercise their so-called nuclear option to end the filibuster rule for Supreme Court nominees, after which Gorsuch’s nomination will be confirmed, perhaps on a strict party-line vote of 52-to-48 Senators. The Democrats cannot get over the fact that the Republicans did not need to filibuster to stonewall Merrick Garland, given their majority in the Senate. They could just sit on his nomination. But since the Democrats could not stop the hearings for Gorsuch, they have chosen to act out their unhappiness by raising frivolous objections against an exceptionally well-qualified nominee who enjoys the respect of everyone who has worked with him.

This increased polarization of the Senate is a relatively recent phenomenon. Between 1954 and 2005, a large number of liberal justices were appointed by Republican Presidents. The list includes Chief Justice Earl Warren, and Justices William Brennan, John Paul Stevens, Harry Blackmun, and David Souter. But the divisions have hardened since then. The last six choices to the Court—Justices Ruth Ginsburg, Stephen Breyer, John Roberts, Samuel Alito, Elena Kagan and Sonia Sotomayor—have not made any surprise judicial conversions. But Schumer was correct in noting that all six of these nominees overcame the filibuster hurdle by garnering 60 votes—a fact he is using to attack Gorsuch with: “If this nominee cannot earn 60 votes—a bar met by each of President Obama’s nominees and George Bush’s last two nominees—the answer isn’t to change the rules. It’s to change the nominee.” In fact, the Democrats could still take the same approach they used with Samuel Alito in 2005: avoid the filibuster by a 72-25 vote (Obama and Schumer among the 25) and then allow confirmation to take place by a 58-42 vote, including some Democratic senators.

Instead, Schumer wants to bait Gorsuch, as Orrin Hatch has lamented. Schumer knows full well that Gorsuch has said that he will rule independently of the President’s preferences—be it Donald Trump or his successors. So why not believe him? Instead, Schumer asks for the impossible—he wants Gorsuch to endorse liberal views before being confirmed. After all, in his view, the reason that Gorsuch refuses to do so is that his “career and judicial record suggest not a neutral legal mind but one with a deep-seated conservative ideology.” The voting record of any appellate judge is an imperfect predictor of his behavior on the Supreme Court. But in any event, the phrase “neutral legal mind” applies far more accurately to Gorsuch, as former Tenth Circuit judge Michael McConnell has shown, than it does to die-hard progressives like Schumer, who think about every issue in partisan terms. Gorsuch is also keenly aware that the law is not a world of happy endings, in which the clever judge can always get his preferred moral outcome by a manipulation of the rules of statutory construction. Bad laws, he knows, often lead to unfortunate results. “A judge who likes every result he reaches,” he has written, “is very likely a bad judge, reaching for results he prefers rather than those the law compels.”

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