Neil Gorsuch is almost certain to be confirmed as an associate justice of the Supreme Court of the United States. And when that happens it can be celebrated as a triumph for the architects of dysfunction and obstruction in Washington — the Republicans who refused to consider Barack Obama’s nominee for the court, Merrick Garland.

The architect-in-chief of that dubious cause, Senator Mitch McConnell, has already earned a chapter in the secret “Congressional Guide to Making Things Not Work” with his strategy of opposing almost everything that came from the Obama administration.

McConnell showed then that he plays a long game.

His ultimate goal was more purposeful than just opposition for the sake of opposition. It was to make the Obama presidency look like a failure, and it worked well enough.

Voters — despite their righteous denunciations of congressional gridlock — rewarded McConnell’s tactics last November when they gave Republicans control of both houses of Congress, as well as the White House.


President Donald Trump has urged Senate Majority Leader Mitch McConnell to ‘go nuclear’ should the Democrats filibuster his nominee for the country’s highest court. (Mark Wilson/Getty Images)

With Garland’s nomination last year, McConnell again played the long game.

“No hearings, no votes, no action whatsoever,” was the credo of Republican senators for an unprecedented 293 days — until Merrick’s nomination finally expired a few weeks ago with the end of the 114th Congress.

The tactic worked spectacularly well and McConnell again has his reward, this time in the form of Gorsuch. For all of that, McConnell will enjoy the everlasting respect and gratitude of conservatives.

Anger over a ‘stolen’ seat

But now come the Gorsuch confirmation hearings, with the potential to add a darker hue to McConnell’s legacy. The anger he triggered among Democrats could have dire and far-reaching consequences.

Democrats think the late Justice Antonin Scalia’s vacant seat was stolen from them. They’re still bitter about that and sorely tempted to make a cause of it by fighting the Gorsuch nomination with everything they’ve got: a.k.a. the filibuster.

For their defence, Republicans are considering what’s called the “nuclear option.”

The “nuclear option” is the grabby shorthand that describes the otherwise-deadly prosaic procedure that Senate Republicans could use to eliminate the filibuster.


Following his death last February, the seat of Supreme Court Justice Antonin Scalia sat vacant for 11 months, with Republican senators refusing to consider Barack Obama’s nomination of Merrick Garland. (Drew Angerer/Getty Images)

Strip away all the detail of procedural rules of order and, in practical terms, what removing the filibuster means is that a court nomination can be confirmed with just 50 senators — plus the vice-president— instead of the customary 60.

The Republicans currently hold 52 Senate seats to the Democrats’ 48. So the Republicans need eight Democrats to confirm Gorsuch in the way they’d like to.

They do not want to use the nuclear option, if they can help it.

Shades of bipartisanship

To understand why, you have to appreciate that, despite all the evidence of its demise, there still remain faint traces of bipartisanship in the White House and Congress.

The search for bipartisan support in the Senate — in this case, the search for those eight Democratic votes — has an important moderating effect in determining what nominees are proposed by the White House in the first place.

‘If we end up with that gridlock, I would say, ‘If you can, Mitch, go nuclear.’ – U.S. President Donald Trump,  urging Senate Republicans to scrap filibuster rules

The more opposition votes the president needs, the more moderate are his proposed nominees.

This works both ways. In the future, should Democrats hold both the White House and the Senate, Republicans will want the president to nominate justices they can support.

Justice appointments, after all, are lifetime appointments.

(Note: If you think Gorsuch isn’t a compromise, then have someone introduce you to Alabama Judge William Pryor, who was also on Donald Trump’s shortlist of potential justices. Pryor has described the decision that recognized a constitutional right to abortion, Roe v. Wade, as “the worst abomination in the history of constitutional law.”)

What senators on both sides of the aisle know is that if either party ever reaches for the nuclear option to eliminate the filibuster in a Supreme Court nomination fight, that will mean the end of the 60-vote-confirmation threshold forever. It will mean the end of a moderating influence on a president’s choice.

Enter President Trump, whose advice to McConnell yesterday was, “If we end up with that gridlock, I would say, if you can, Mitch, go nuclear.”

A filibuster felt for generations

Here’s what Democrats have to consider:

The working days left for the oldsters of the court — Stephen Breyer, 78, Anthony Kennedy, 80, Ruth Bader Ginsburg, 83 — will only get fewer. There’s a not bad chance that one, two or all three will leave before Trump leaves the presidency.

So to filibuster the Gorsuch nomination now might be an unwise tactic if it leads to the nuclear option. The elimination of one of the last moderating tools in an increasingly partisan Congress at a time when the direction of the court will be shaped for a generation or two is something that both parties could regret.

Breyer, Kennedy, Ginsburg

The three oldest judges on the U.S. Supreme Court are (from left to right): Stephen Breyer, 78; Anthony Kennedy, 80; and Ruth Bader Ginsburg, 83. Should any of them leave in the next four years, Trump will have the opportunity to nominate another justice, shaping the direction of the Supreme Court for a generation or two. (Joshua Roberts/Reuters)

Democrats can still aim tough questions at Gorsuch and use the nomination hearings to make their point about the unfairness of what happened with Merrick Garland.

It might even be fun.

They could, for instance, question Gorsuch about Garland. Did the Senate have a constitutional obligation to hold hearings on Garland’s nomination? Is there any prohibition against a president filling a Supreme Court vacancy in an election year, as Republicans claimed?

Gorsuch has already complained about “partisan bickering over ideological control” of certain courts.

Democrats could recall that in a 2002 op-ed, Gorsuch pointed to the Senate’s delay of two of what he described as “the most impressive judicial nominees” for the U.S. Court of Appeal and said they had been “grossly mistreated” by the Senate.

One of the nominees he was talking about is now Chief Justice of the United States, John Roberts.

The other is Merrick Garland.

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