A disastrous Democratic decision

Liam Donovan writes at Politico:

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.

The are on the verge of making a huge mistake – for the second time.

The first mistake was when Harry Reid used the nuclear option to get rid of the 60 vote threshold for cloture on Cabinet and judicial (except ) appointments. It has come back to bite them in a major way as Trump has managed to get all his Cabinet confirmed, despite many getting less than 60 votes.

It also means there is almost no political pain for McConnell to get rid of the 60 vote threshold for Supreme Court appointments. If Reid has not done what he did a few years ago, there would have been huge resistance to changing the rules for Trump nominees. I doubt the Republicans would have got the votes for it.

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.

This is key. Some Republican Senators do not want to use the nuclear option but if the Dems are going to block a vote on someone as suitably qualified as Gorsuch, then they will get rid of it as the only remaining option.

Now if a liberal Justice dies in the next three years, the next Trump nominee will dramatically shift the balance on the Supreme Court. And if the 60 vote threshold has been abolished this time around, he is almost certain of getting his pick confirmed no matter who they are.

However if they let a vote occur on Gorsuch, and kept the 60 vote threshold, it would be far harder to have the Republicans invoke the nuclear option for the next nominee.

So the end result of this is not just going to be that Gorsuch gets confirmed, but also that Trump will have a much easier time with his next nominee. A huge own goal.

Another aspect to all of this, is that the Senate has become so partisan, that I believe no future Supreme Court nominee will be appointed unless the President’s party has a majority in the Senate. There will be years of vacancies.

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