Loserers

James Freeman:

[Monday] morning Neil Gorsuch became the 113th Associate Justice of the Supreme Court, vindicating the decision of conservatives to vote for Donald Trump in 2016. This may signal the end of the Republican NeverTrump movement, which in its heyday attracted the support of literally dozens of think-tank scholars and columnists in a broad coalition that stretched from Washington, D.C. to as far away as Manhattan. Speaking of Manhattan, Trump’s Gorsuch triumph is also bound to inspire a new movement, this time within the Democratic Party. Expect more internal dissent as party members review the historic political blunder committed by New York’s Charles Schumer, current Senate Minority Leader and a man previously viewed as perhaps the shrewdest and most effective legislator in Washington.

By leading a filibuster against Mr. Gorsuch, Mr. Schumer inspired Republicans to follow the Democrats’ 2013 example on executive and lower judicial appointments and end the filibuster for all judicial appointments. This opens the door to a potential series of solid Trump appointees winning confirmation to the nation’s highest court. Now consider if Mr. Schumer had allowed the eminently qualified Mr. Gorsuch to receive a floor vote. Such a show of comity and fair-dealing would have made it next to impossible for Senate Majority Leader Mitch McConnell to persuade the most liberal members of his caucus to break the filibuster to confirm the next Trump appointee. Mr. Schumer failed to stop the Gorsuch confirmation and in the process he has destroyed his ability to stop any others.

This column has often had fun at the expense of Vox, a website for young adults that features lightly researched material on current events. So it seems only fair to laud the Vox kids when they publish thoughtful commentary. Last week they offered, “The progressive case against filibustering Neil Gorsuch,” by law professors Daniel Hemel and David Herzig. They explained before the showdown how Mr. Schumer could still save his ability to stop other Court picks if he agreed to permit a vote on a nominee that even the liberal American Bar Association admitted was highly qualified:

Quite a few Republican senators would prefer, all else equal, to see the filibuster stay rather than go. This is so for at least three reasons. First, some Republican senators have long enough memories ( Orrin Hatch (UT), John McCain (AZ)) or long enough time horizons (for example, Ben Sasse (NE)) that they value the filibuster for when Republicans are in the minority. Second, some senators, for example, Lisa Murkowski (R-AK) and Susan Collins (R-ME), realize that the filibuster is all that keeps them relevant. If it takes only 50 votes to do business, then the 51st and 52nd most conservative senators — the Republican “moderates” — are powerless. Third, some senators, for example, Lindsey Graham (R-SC), appear to have an affinity for Senate tradition that will lead them to support the filibuster except in an extreme situation.

Perhaps Mr. Schumer should have applied what we might call the Vox Test: When the most politically active young adults in the Democratic Party are urging restraint in pursuing the liberal agenda, it’s probably a good sign that party leaders are going too far.

Mr. Schumer ought to know this without having to consult Vox. So if he was smart enough to avoid this mistake but made it anyway, this suggests he didn’t have the skills to convince other members of his conference to ignore the most hysterical elements of the progressive base in their demands for a Gorsuch goal-line stand. Either way, his leadership position is much less secure than before he lost last week’s “nuclear” war against Senate Majority Leader Mitch McConnell.

Mr. Schumer could potentially be reminded of his failure several times during the Trump era, as Justices Ruth Bader Ginsburg and Anthony Kennedy are in their 80s and Justice Stephen Breyer is 78. The Vox contributors had no trouble imagining a scenario in which Democrats “will wish they had not set in motion the events that led to the filibuster’s demise.” The authors imagined scenarios in which Democrats might have benefited from keeping the filibuster—even if they have relatively successful midterm elections next year:

Imagine a 51–49 Senate with Murkowski as the critical vote, or a 50–50 Senate with Collins as the critical vote (and maybe Joe Manchin (D-WV) sometimes crossing over party lines). Let’s say that Kennedy or a Democratic appointee then leaves the Court, and President Trump names an avowedly anti-abortion appellate judge to fill the vacancy. Is it plausible that Collins, Murkowski, or Manchin a) might support the nominee on an up-or-down vote but b) might be unwilling to go along with McConnell’s use of the nuclear option?

We think so. But more to the point: While it is not too difficult to come up with scenarios in which keeping the filibuster helps the Democrats defeat a very conservative nominee in the future, it is much harder to see how filibustering Gorsuch accomplishes anything for the Democrats.

What President Trump has accomplished is filling the seat of the late Justice Antonin Scalia with a 49-year-old who is a formidable defender of the Constitution and who today called Justice Scalia a “very, very great man.” Behind closed doors, Democrats are likely providing very different descriptions of Mr. Schumer.

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