Eight Years Ago, Barack Obama Told Republicans that Elections Have Consequences. They Hold the Whip Hand Now.

As Senate Democrats move ahead with their plans to filibuster the nomination of Neil Gorsuch, I can’t help but wonder what Merrick Garland thinks about the showdown in the Senate. A filibuster might feel good in the moment — a salve for the simmering rage that continues over Republican treatment of Garland’s nomination last year — but it will not affect the ultimate course of events. Mitch McConnell won. He might have thrown his reputation as a Senate institutionalist under the bus when he led the Republican boycott of Garland’s nomination last year, but at the end of the day, a Republican nominee will sit on the Supreme Court. That was what McConnell cared about, and that will be the result.

The looming Democrat filibuster is payback for McConnell’s boycott — what they see as the theft of a seat on the Supreme Court — and many have come to see it as a matter of principle. But the filibuster is an action that is fraught with potential unintended — though easily foreseeable — consequences. If Democrats are lucky, McConnell and the Republicans will — as promised — get rid of the filibuster rule and confirm Gorsuch. If through some fluke event — or last minute loss of nerve by McConnell — Gorsuch is not confirmed, one can only imagine who a petulant and brooding Donald Trump will nominate next. But whomever it might be — Jeff Sessions’ best friend Judge William Prior, perhaps — there is no way that Republicans will let two nominees fall to Democrat petulance over Garland.

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The outcome of the Gorsuch nomination is in Mitch McConnell’s hands. If Democrats do filibuster the nomination — as now seems all but assured — McConnell will most likely make good on his threat to proceed to the nuclear option, and Gorsuch will be approved by a simple majority vote. Should eight or more Democrats ultimately back off and oppose the pending filibuster — whether to keep their powder dry for the next Supreme Court vacancy or out of concern for the damage that eliminating the filibuster will do to an increasingly fragile institution — there is no reason to believe that Republicans would not use the same threat next time around.

Either way the Supreme Court filibuster has already effectively gone by the boards: either the GOP goes ahead and eliminates it this time around, or the filibuster will be effectively neutered as a tool of the minority going forward, undermined by the permanent threat of the nuclear option down the road. This is not Mitch McConnell’s doing — or Harry Reid’s for that matter — we live in an era of rank partisanship, where residual notions of reverence for the Senate as an institution have long since been rendered quaint. With the demise of the judicial filibuster, it is only a matter of time before other Senate rules come under attack. After all, once the filibuster is eliminated as an inconvenient artifact impeding majority rule on judges, why should other vestiges of earlier eras of Senate comity such as the Byrd Rule — which requires a 60-vote majority for approval of legislation with significant deficit consequences — continue to act as impediments to true majority rule?

Each year that goes by, we tell ourselves that the partisanship in our politics cannot get worse, yet somehow it does. But don’t blame members of Congress, they are merely a mirror of the electorate at whose behest they serve. Democrats should keep that in mind, lest they read too much into Donald Trump’s approval ratings dipping below 40%. While Donald Trump may have historically low approval ratings for a president in his first months in office — with negative ratings hovering around 55% — those numbers are not simply about Trump. They are a reflection of how deeply rooted our partisan divisions have become. The fact that George W. Bush’s approval rating hovered near 60% in his first months in office — after the most bruising election drama in memory — tells you how much the world has changed. There is no honeymoon anymore. Trump won 46% of the popular vote in the general election, and few of those who voted for Clinton are likely to be inclined to think better about Donald Trump simply because he is now President Trump. As such, an approval rating for Trump below 50% is baked into the cake.

The devolution of political debate was evident in the recently completed Senate hearings on the Gorsuch nomination. Perhaps — to use a Trumpian metaphor — if Neil Gorsuch were to shoot someone on Pearl Street in Boulder in broad daylight, a Republican or two on the Senate Judiciary Committee might reconsider voting to confirm his nomination, but perhaps not. More likely, reports of the shooting would be deemed fake news, and the vote would go forward as planned.

Senate Democrats should allow the Gorsuch nomination to go forward. I do not say that with some notion that returning to comity requires that someone take the first step — that the partisan genie can be put back into the bottle — but rather as a pure strategic assessment of the realities of the situation. Eight years ago, at a time when Democrats controlled both the House and the Senate, incoming President Barack Obama admonished Republicans that elections have consequences. His words are more true today than they were then, but this time it is the Republicans who hold the whip hand. When I read about Senate Democrats demanding that Trump withdraw Gorsuch in favor of a new nominee, I wonder what evidence they have gleaned from Donald Trump’s brief tenure as President that suggests to them that his next nominee would be more to their liking. I understand that many of those Senators are responding to the demands of Democrat activists who have let their anger over the treatment of Merrick Garland blind them to the realities at hand.

To those who yearn for the succor that a filibuster fight might offer, I can only say, be careful what you wish for. Given what we have seen from this administration to date, there remains the not-insignificant possibility that Donald Trump and Steve Bannon and Jeff Sessions will look at a Democrat filibuster and use it as an opportunity to turn things up a notch. Screw ’em, Bannon might say, to Sessions’ inevitable glee, let’s pull the Gorsuch nomination and put William Pryor on the Court instead.

Follow David Paul on Twitter @dpaul.
Artwork by Jay Duret. Follow him on Twitter @jayduret or Instagram at @joefaces.

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Financial advisor to city and state governments. Lifelong Red Sox fan (don't hold it against me).

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