After refusing to allow Barack Obama nominee Merrick Garland so much as a hearing, Republicans in Congress are on the verge of confirming Neil Gorsuch to the Supreme Court and returning the highest court in the land to conservative control. However, earlier this week, Democrats secured enough votes to sustain a filibuster against Gorsuch’s nomination. If the filibuster continues Republicans will likely try to use the nuclear option, which will change the Senate forever. Enacting the nuclear option would lower the number of senators needed to override a filibuster on a Supreme Court nomination to a simple majority of 51.
Obviously this would forever change the power dynamics of Supreme Court nominations, as parties in control of the Senate could approve nominees without any say from the minority. There would no longer be any bipartisanship required for nominees for what is supposed to be a nonpartisan body. As such, Democrats should proceed cautiously with how they move from here.
Ideally, the Democrats’ filibuster would force the Republicans to find a nominee who is more moderate than Gorsuch. Gorsuch has been rated as more conservative than the extremely conservative Antonin Scalia, whom he is replacing. If Trump pulled Gorsuch and nominated someone ideologically closer to John Roberts or Anthony Kennedy, Democrats would be much more likely to advance them. After their unprecedented obstructionism of Garland, Trump and Republicans should have nominated a more moderate justice to at least make an effort to heal wounds. The nomination of Gorsuch, who is much more ideologically extreme, was just one more insult to Democrats.
Unfortunately, Republicans are hell-bent on confirming Gorsuch to solidify their control over every branch of government and will likely invoke the nuclear option if the filibuster continues. Politically speaking, Democrats could come out of such a move poorly. Gorsuch is a somewhat popular nominee, and the public might blame Democrats for the rule change if they are perceived as forcing the Republicans’ hand. Additionally, if another Supreme Court spot would open up in the next four years, Democrats would have essentially no way to fight it. This could result in the loss of Supreme Court control indefinitely, or a 6-3 conservative majority. However, giving up the filibuster with nothing to show for it would infuriate grassroots members of the party.
With that in mind, Democrats might want to seek alternatives to a standoff over the nuclear option. There are many Senators on both sides of the aisle who do not want to see the Senate rules changed. With that in mind, Democrats could attempt to reach out to Republicans and guarantee support for a more moderate nominee. Another solution would be to strike a deal with Republicans. For example, Democrats might agree to end the filibuster if Trump and Republicans sign a pledge to not reduce funding for the EPA over the next four years. Such a move would still see Gorsuch on the court, but Democrats could secure something very important to them in return. After the Trumpcare fiasco, Trump might be willing to strike a deal like this to bolster his reputation as a master negotiator.
The best thing for Democrats at this point would be to prevent Republicans from using the nuclear option. It is entirely possible Republicans might not have the votes for it, but at this moment, it seems too risky to call their bluff. If Democrats are able to strike some sort of deal or force a new nominee it would be a huge win for them. However, they will be in trouble if the Republicans choose the nuclear option. They will have no path forward to block future nominees and there could be numerous consequences for the Supreme Court going forward. While I certainly agree with the intent of the Democrats in this endeavor, they can’t afford any gaffes.
Jacob Kowalski is a weekly columnist to The Daily Campus opinion section. He can be reached via email at firstname.lastname@example.org.