Gaius Publius: Senate Democrats Will Filibuster Gorsuch…Maybe

By Gaius Publius, a professional writer living on the West Coast of the United States and frequent contributor to DownWithTyranny, digby, Truthout, and Naked Capitalism. Follow him on Twitter @Gaius_Publius, Tumblr and Facebook. GP article archive  here. Originally published at DownWithTyranny

Demos President Heather McGhee on Neil Gorsuch and his corporatist policies (cued partway into the presentation)

There a long litany of reasons why Neil Gorsuch is a terrible choice for the Supreme Court, including and especially his strong “corporatist” leaningsDemos President Heather McGhee speaks about that in the brief video above. Needless to say, continuing the Roberts Court pattern of enabling corporate rule over rule by the people will have dangerous consequences for those so ruled, as well as for the Republic, when that rule is overthrown. Make no mistake — when corporate rule finally go too far, takes one step too many, it will be overthrown. When that occurs, the moment will be neither pretty nor comfortable.

Another in that litany of reasons, of course, is to deny to the Republicans the fruits of a stolen seat.

Yet a third has to do with his relationship with religion, as shown in the Hobby Lobby case. As the invaluable Dahlia Lithwick points out, “Our current religious-liberty jurisprudence, as laid out by the Supreme Court in its Hobby Lobby opinion, is extremely deferential toward religious believers. What believers assert about their faith must not be questioned or even assessed. Religious dissenters who seek to be exempted from neutral and generally applicable laws are given the benefit of the doubt, even when others are harmed. Sometimes those harms are not even taken into account.” She adds, “Gorsuch agrees with all of this and then some. His record reflects a pattern of systematically privileging the rights of religious believers over those of religious minorities and nonbelievers.”

And a fourth, related to the first, is that, as Lithwick has elsewhere pointed out [corrected: it was Eric Segall] that the Supreme Court, unlike the other two branches of government, has no compelling force to guarantee its legitimacy — no army, in other words; no police force. Its legitimacy rests on agreement only.

Consider: You may think Executive Branch decisions are illegitimate, but its officers can nevertheless have you arrested or worse. The Executive Branch, in other words, can force, can compel, your submission. The same with Congress, should it decide someday to advance its prerogatives. Congress can pass laws and, if it wishes, compel the Executive Branch to enforce them. The Supreme Court, in contrast, has no way to compel any citizen to obey its decrees.

When a court, any court, which by definition should be impartial, is widely considered illegitimate — captured and corrupted by partisan or minority forces — the community governed by that court enters “you can submit or rebel” territory. This is Segall’s warning. In my view we are very close to that time when the Supreme Court, in the eyes of most of its citizens, has shed the last of its legitimacy. The process started in earnest with the partisan theft, by the Court, of the 2000 presidential election. The decay of its cloak of legitimacy continues to this day.

This suggest a larger consideration, of course — what happens when a government loses the “consent of the governed,” but that’s a subject for another day. Nevertheless, with all that’s going on around us, can that consideration, something much to be feared by anyone hoping to live in a just and orderly society, ever be far from our minds?

A “Deal” on Gorsuch?

But I want here to look at one political aspect of the Gorsuch nomination — the fact that the Democrats, one of the abused parties in this saga, seem to have offered Republicans, or are considering offering to them, a “deal” that would allow Gorsuch to be confirmed. Then, when the deal became known, they appear to have reversed themselves. But have they?

First, the deal (my emphasis):

Democrats weigh deal to let Gorsuch through

Lawmakers are mulling an offer to Republicans that would keep the filibuster intact for the next Supreme Court nominee.

A group of Senate Democrats is beginning to explore trying to extract concessions from Republicans in return for allowing Supreme Court nominee Neil Gorsuch to be confirmed, according to multiple sources familiar with the matter. … The deal Democrats would be most likely to pursue, the sources said, would be to allow confirmation of Gorsuch in exchange for a commitment from Republicans not to kill the filibuster for a subsequent vacancy during President Donald Trump’s term.

This report, like many such reports from places like Politico, also contains the “cover story,” the “reasonable explanation” (in sales terms) that the guilty parties would like you to believe are their motives. “The lawmakers worry that Gorsuch could be confirmed whether Democrats try to block him or not — and Democrats would be left with nothing to show for it.”

The real reason corporatist Democrats — a group that includes Chuck Schumer, remember, if it is not led by him — want Gorsuch confirmed is that their corporate paymasters (sorry, campaign contributors) want Democratic Senators to help confirm him, and may shut off the flow of money if they don’t.

Who are the Democrats who want to cut a deal to get Gorsuch confirmed? The article wouldn’t name them, but does say, “The current talks are limited to about a half-dozen Democratic lawmakers.” While the article says the senators looking to cut a deal on Gorsuch requested anonymity, it adds, “Some liberals are aiming to block Gorsuch, while others are worried about the electoral prospects for 10 senators up for reelection next year in states won by Trumpif they’re seen as obstructing the president’s court pick” (my emphasis).

A look at Democrats up for reelection in 2018 includes these, culled from a list of those whose votes for Trump nominees are among the worst:

  • Cantwell
  • Cardin
  • Carper
  • Casey
  • Donnelly
  • Heinrich
  • Heitkamp
  • Kaine
  • King (Independent)
  • Klobuchar
  • Manchin
  • McCaskill
  • Menendez
  • Nelson
  • Stabenow
  • Tester

All of these senators will face the voters in 2018. Care to pick a “half dozen” from that list who may have been on Politico’s “anonymous” list? Joe Manchin is named in the Politico piece as being especially concerned about preserving the filibuster, as is Chris Coons, who is not up for reelection until 2020.

Remember, it will take just eight Democrats to break a filibuster and confirm Neil Gorsuch.

Reaction to News of the “Deal”

After a strong negative reaction to news of this “deal,” Senate Minority Leader Chuck Schumer announced that the Democrats would filibuster the nomination. The Washington Post headline announced:

Schumer: Democrats will filibuster Gorsuch nomination

The implication is that all Democratic senators, or a sufficient number of them, would indeed block this nomination, thus clearing the Party as a whole of the suspicion of complicity. But the Post article itself was more circumspect: “Senate Minority Leader Charles E. Schumer (D-N.Y.) said he will vote no on President Trump’s nominee and asked other Democrats to join him in blocking an up-or-down vote on Gorsuch” (my emphasis). Note — he “asked” other Democrats to join him.

The Post adds to the uncertainty, noting:

The Democrats’ liberal base has been pressuring senators to block Trump’s nominees across the government. But Schumer stopped short of saying that his entire Democratic caucus would join him in opposition to Gorsuch, leaving political space for some Democrats to find ways to work with Republicans.

Will the Gorsuch nomination be filibustered, or “filibustered”? Democrats have the numbers to block this, and Schumer is strong enough to whip his caucus into line — if he wants to. Will we watch the Schumer-led Democratic Party block Neil Gorsuch from a lifetime seat on the Court, or just pretend to?

Bottom Line — Who Will Step Up for Gorsuch So Others Don’t Have To?

Privately, I think there are easily more than eight corporatists in the Democratic Senate caucus who would eagerly put paid to their obligations to the very very wealthy, who want this nomination to succeed very very much. If the Gorsuch vote were secret — or entirely unnoticed, as most Monsanto Senate votes are — you’d see them all vote yes without a backward glance. Even “liberal lion” Al Franken votes with Monsanto when the spotlights are off. Same with MSNBC darling Amy Klobuchar, who is on the list above, by the way.

The list of possible pro-Gorsuch senators includes the obvious names above — Manchin, Heitkamp to name just two — but also includes these so-called “undecided” senators:

  • Kaine (Clinton’s veep pick)
  • Klobuchar (her again)
  • Warner (a Schumer ally in Senate leadership)
  • Coons
  • Hassan
  • Donnelly
  • Nelson
  • Tester

The chips are down and most of the cards have been played. The Democrats have heard from their other base — people who vote — and have announced a filibuster. It’s in their power to win, during this round anyway. What will they do?

This test is a very big deal. It will tell voters once again who the Democratic Party, in the aggregate, represents. Will eight Democrats (including the Democratic-caucusing Angus King) cross the line and vote with Republicans so others don’t have to? Or will Senate Democrats realize that the path to irrelevance in the Age of Trump, well paid though it be, leads through this door, and stand up to the money that funds them?

I can’t wait to find out what happens. Either way, it will be consequential (meaning, have consequences).

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  1. UserFriendly

    This is the stupidest hill to die on, and die we will.

    Senate Republicans Appear Ready to Push the Button

    Usually, centrist Republicans like Lindsey Graham, Lisa Murkowski, and John McCain oppose “running roughshod” and changing rules for political reasons. But all three of these Senators have indicated they’ll push the button for Gorsuch’s confirmation. Senators Portman, Flake, and Gardner almost certainly follow suit. The lone holdout I can see at this point is Susan Collins, who has generally opposed process changes for political expediency. But since the Republicans can afford to lose two Senators and, with Vice President Mike Pence, go nuclear, it is more likely the Senator from Maine will spend the next ten days trying to convince centrists on the Democratic side to break the filibuster than to spend her energy trying to convince her own party not to drop the bomb.

    Why settle for replacing 1 far right wing nut with 1 far right wing nut and 1 center right nut (Kennedy) with another center right nut who will need 60 votes when it feels so good to throw a temper tantrum because the feckless dems couldn’t push hard enough to get Garland through?

    Who cares that the temper tantrum will lead to a solid 5 hard right justices whose oldest two members will be Thomas (68) and Alito (66)? That pointless shortsighted virtue signaling will feel sooooo good when they overturn row and do everything possible to bring us right up to neofeudalism during their 20 year lock on the court.. I hate this shit hole of a country.

    1. charles leseau

      They won’t overturn Roe v. Wade. Republicans have never turned it over with a 3-level majority or SC rule and won’t start now. The threat is always greater than the execution here. They need it as a political talking point to make themselves appear different from Democrats, for one thing.

      And another thing is that except for the Christian fundy Right, there are lots of conservatives who privately support legal abortion since they sometimes have to use its services too. It would be extremely naive to think that only liberal couples have unwanted pregnancies. State and local levels are where abortion laws will see the squeeze, particularly down south where most of the fundies are.

      1. UserFriendly

        Ok, I get it. I can be hyperbolic when I’m mad. A conservative lock on the court still wont be fun.

      2. Jason Boxman

        Also, at the state level in practice in some states it’s a right on paper only. Without providers, it’s hard to avail yourself of health services. See Texas, for example.

      3. Mark Anderlik

        You are correct to say that Roe is not likely to go away nor will LGBTQ rights, such as they are established, be overturned. The real threats are exactly what the author says and I would split the corporatist category into two parts: his views are a threat to democracy and workers rights. These and favoring religious rights over all are the biggest threats. Maybe we should form the Church of Democratic Socialism.

        Joking aside, we are working on getting Tester to filibuster. That seems to be a better defense.

    2. voteforno6

      What’s the point of having a filibuster if you’re not going to use it? What would prevent the Republicans from threatening to nuke the filibuster every time something really objectionable comes up for a vote? By this logic, the Democrats should just fold every time (and they do!), just to preserve the possibility that they could keep it for some future use, which I guess is when they have the majority back, so Republicans can block things. If the filibuster is going to be killed off, they just might as well do away with it now. At least they wouldn’t be able to use that excuse as to why the Democrats in the Senate are so awful.

      1. UserFriendly

        Senators are a lot of things but if Democrats agreed not to sink Gorsuch in exchange for the right to filibuster the rest of Trump’s nominees I don’t see the GOP having the votes to nuke next time.

        1. voteforno6

          Which nominees are that? The Democrats already nuked the filibuster for every nomination except for those to the Supreme Court. So, the only time this really becomes an issue is whenever a spot opens up on the Court. Do you think that the Republicans would be any less willing to go to the mat for future nominations to the Supreme Court?

          All that this stance seems to be doing is tying the hands of the Democrats in the Senate. They can claim that they’re preserving the filibuster for some undefined future nomination battle, but the net effect is the same as if the Republicans had done away with the filibuster – their nominee gets on the Court. At some point the Democrats need to call this bluff. Is Gorsuch not objectionable enough?

          1. UserFriendly

            There are a handful of GOP senators that are not keen on nuking the filibuster. Collins doesn’t want to, The others listed in my comment have expressed reservations over nuking it but said they will now if they have to. They will have a hell of a lot harder time going back on a public deal not to nuke than they would to just do it now.

            If dems say fine we’ll play ball now and then the GOP nukes next time anyway then they would have nuked now. There is literally no chance the GOP will back down over this seat. There is at least some chance they will for the next one.

            Do you expect Trump to come around and offer a consensus pick after his big loss on health care?

            No, you just want to kick sand in there eye because it feels good, consequences be damned for the rest of us that have to live with it.

        2. NotTimothyGeithner

          Handshake deals with the GOP are meaningless. Republicans play to win. Giving up leverage makes no sense.

          A secret deal to fund transportation funding was Kaine’s excuse as governor for cutting the estate tax back in 2007. Amazingly, enough the Republicans said, “what deal?” after Kaine supported a repeal of Virginia’s estate tax. Where would the funding for Kaine’s transit project come from after cutting taxes on the wealthy

          Democratic elites are simply to corrupt or too stupid to be trusted with any scheme.

          1. Vatch

            Handshake deals with the GOP are meaningless. Republicans play to win. Giving up leverage makes no sense.

            Exactly. Whenever the Democrats choose to filibuster against a Supreme Court nomination, the Republicans will have the option of changing the rules. Since the Democrats lack a majority, they have no way to enforce any “deals” with the Republicans.

            As voteforno6 says:

            What’s the point of having a filibuster if you’re not going to use it? What would prevent the Republicans from threatening to nuke the filibuster every time something really objectionable comes up for a vote?

  2. PH

    They want to sell out, but are nervous and looking for cover. A start.

    But they need to feel actual FEAR. Only the realistic prospect of a strong primary challenger will put that fear into the Dems.

    Negative opinion polls are one thing. Angry voters who actually show up to vote on a day when there is a feisty Progressive on the ballot is another thing entirely.

    We have to bring our game to the next level.

    1. different clue

      And in cases where a feisty primary challenger fails, then if every supporter of that challenge withheld their votes from the establicrat winner, that might be bringing the game up to the one more nexter level yet.

  3. Jen

    So let me see if I have this right:

    Schumer’s deal guarantees a right majority on the court. In exchange
    If another “liberal” vacancy opens up and
    If said vacancy occurs before 2018, or the Dems manage to hold on to enough senate seats to even be relevant and
    If the republicans keep their word
    the Dems get to filibuster a future appointee who will make the already conservative majority more so.

    Guaranteed victory for Republicans in exchange for a meaningless promise over an event that has yet to occur.

    Resistance, my a$$.

  4. xyzzy

    I understand the desire to punish the Republicans for their behavior in regards to Judge Garrick. It was truly horrible, but I don’t understand the endgame here. Is it just a show of solidarity with the base? Do they honestly think the Republicans won’t invoke the Nuclear option?

    I do think Trump screwed up here. He should have used the Bush playbook with Alito. Nominated someone first who was truly horrible (Harriet Miers) let that nominee get the brunt of the pent up Garrick anger, and then put forward Gorsuch.

    1. RUKidding

      Trump’s too incurious to know that tidbit of history, and he’s not all that great of a deal-maker imo. I think the Donald’s alleged great deal/negotiation skillz are more in Trump’s mind than in practice. He’s not that clever.

  5. fosforos

    All the talk is about the–absolutely unconstitutional–procedural “filibuster.” But what about a *real* filibuster? Unlimited, continuous “24/7” debate until this repulsive nominee has been discredited to the point that the nomination must be withdrawn? Anything short of that is mere shadowboxing.

    1. different clue

      Would a few “hard Bernie” Senators be enough to do that if they kept rotating through the speaking position? So the others could rest while one is talking?


    Donnelly would also want to confirm Gorsuch to appease religious right voters. Indiana put both Pence and Daniels in the governor’s mansion, and Donnelly is pro-life. Evangelical Hoosiers might not be as animated about religious issues as their southern brethren, but it still weighs heavily for statewide elections.

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