AP Photo On The Bench Schumer’s Folly Democrats are heading toward an epic miscalculation in filibustering Neil Gorsuch.

Liam Donovan (@lpdonovan) is a former NRSC staffer who currently serves as director of legislative and political affairs for a D.C.-based trade association.

After three days of breezily proficient testimony before the Senate Judiciary Committee, Judge Neil Gorsuch emerged unscathed. The high court nominee deftly parried the barbed queries that came his way, calmly defusing and in some cases disarming his more heated inquisitors on the dais. The proceedings as a whole were anticlimactic, particularly in light of the frenzied health-care drama playing out on the other side of Capitol Hill. And yet less than 12 hours after the Judiciary Committee wrapped up its work for the week, Minority Leader Chuck Schumer took to the floor of the Senate to announce his intention to deny Gorsuch cloture, calling on his colleagues to join him in a procedural blockade of the judge’s nomination and daring Republicans to change the longstanding rules of the chamber.

As to whether his members will answer the call to filibuster Gorsuch, the signals to date have been mixed. While purple-state centrists like Florida Sen. Bill Nelson have flashed uncharacteristic resolve, liberal stalwart and former Judiciary Committee chairman Patrick Leahy of Vermont indicated that he was “not inclined” to deny the nominee an up or down vote. The fate of the gambit will hinge on the intentions of nearly 20 remaining holdouts from various wings of the party.


In the midst of the hearings, a few Democrats even floated a deal to confirm the 10th Circuit judge in exchange for a commitment from the GOP not to go nuclear on a hypothetical future vacancy—though Schumer quickly shot them down. On one level, the proffer makes sense—it’s always better to be for what’s inevitably going to happen, particularly if it means you can extract concessions in return.

But with the spectacular collapse of the GOP health care bill last week and signs of continued deterioration in President Trump’s standing in public opinion polls in the interim, Democrats feel the wind at their backs. There is little Trump and his party could offer that would make it worth the grief they’ll inevitably face from their own voters for standing down. And given the GOP’s recent propensity for self-immolation, who is to say they won’t screw this up?

The problem for Schumer and his caucus is this: Republicans are not bluffing when they say Gorsuch will be on the court one way or another. The squishes, the institutionalists, even the erstwhile “Gang” members are unwavering in their support. Gorsuch is well-qualified for the job, acquitted himself admirably by any measure, and if an unprecedented partisan filibuster is the only thing standing between him and the bench, the Reid Rule will be invoked for the second time.

But saying Republicans have the political will to put Gorsuch on the court is different than saying there are 50 GOP senators who are otherwise prepared to end the filibuster. Their appetite is entirely a function of circumstance. Were Democrats to lay off Gorsuch, keeping their powder dry for the future and maintaining the moral high ground, it would be rather easy to imagine the Susan Collinses, John McCains and Lindsey Grahams of the world getting cold feet with a lesser Trump pick, particularly one who shifts the balance of the court rather than maintaining it. Which is to say that Gorsuch’s nomination is something of a perfect storm for GOP procedural fortitude. Only seeing such a model jurist held hostage to cynical political whims would be enough to compel the righteous indignation necessary to go nuclear. (I’ll pause here so my friends on the left can let out a primal scream for poor Merrick Garland.)

The cloture rule now faces an existential paradox. Call it Schrödinger’s Filibuster. Assuming Schumer can hold the line within his caucus—and he has seven votes to give—the 60 vote threshold for Supreme Court nominations is dead. Do the right thing and it lives to see another day.

It’s unclear whether Democrats think Senate Majority Leader Mitch McConnell will blink or if they simply believe the filibuster’s demise is inevitable. Indeed, they themselves likely would have been forced to go nuclear under a President Hillary Clinton. So perhaps it was just a matter of time.

What’s apparent is that their agitated and increasingly emboldened base is unlikely to care either way. The imperative of The Resistance is unambiguous, however quixotic the mission. Collaboration will not be tolerated, a message thousands delivered to Schumer’s Brooklyn doorstep mere weeks ago.

As a matter of political calculation, this is all well and good. Turnabout is fair play, and whatever the short-term ramifications, a majoritarian body will one day benefit Schumer’s party. But given the structural realities of the Senate map—Democrats are defending 25 seats in 2018, 10 of them in states they failed to carry last fall, compared to just 9 and one for Republicans—the “short term” horizon runs through 2020 at the very least. In the meantime, they’re not only paving the path for less qualified nominees in the likelihood of future Trump-era vacancies, they’re needlessly greasing an already slippery procedural slope. With GOP efforts stymied thus far in part by the specter of the Senate parliamentarian—the arbiter of what can pass majoritarian muster under reconciliation—how long until pressure mounts to change the rules for legislation? Given the tenor of the first two months of this administration, I suspect many Democrats aren’t terribly sanguine about the prospect of unchecked GOP control for the remaining 46.

Just a few short months ago, Leader Schumer was publicly lamenting his predecessor’s judicial power play; today he seems poised to reprise Reid’s folly, only this time with far greater stakes. If Democrats truly believe their rhetoric about the current political moment and the existential threat President Trump poses, daring reluctant Senate Republicans to erode the remaining norms that empower the minority is as myopic as it is gratuitous.