An open letter to Democrats on Gorsuch nomination

Dear Democrats,

If you care about the future of the Supreme Court do not support a filibuster of Judge Neil Gorsuch’s nomination. To do otherwise is shortsighted for two reasons.

First, if your goal is to keep Gorsuch off the bench, the filibuster is not a winning strategy. Even supporters of this tactic agree it will not work. Senate Republicans will go “nuclear” and decrease the requirement to confirm Supreme Court justices from 60 to a simple majority. Gorsuch is expected to get the necessary votes to join the high court.

This is, in no uncertain terms, a protest in name only. There is no real hope of or plan to keep Gorsuch off the bench. The strategy will succeed only in sticking it to President Donald Trump and the GOP. In the process, you feed a frustrated base and capitulate to the donor class.

For some of you this is enough. It shouldn’t be.

This gets to the second reason why a filibuster is shortsighted — it has to potential to irrevocably hurt the causes liberals care about, not to mention jeopardize the future of the Supreme Court. There are three Supreme Court justices who are over the age of 76: Stephen Breyer (born in 1938), Anthony Kennedy (born in 1936), and Ruth Bader Ginsburg (born in 1933). Statistically, the most common way in which justices leave the court is not resignation, retirement or impeachment, but death.

In short, age matters and it is not out of the question that even a one-term President Trump will be in a position to appoint a second (or third) nominee to the bench. If he has the opportunity, he will choose someone as conservative, if not more, than Gorsuch. That isn’t what matters, however.

When it comes to the Supreme Court what matters most is not who is being nominated, but whose seat is being filled and whether the ideological balance on the bench is changed?

Love him or hate him, Gorsuch is not going to change the conservative-liberal split on the court. He is replacing an equally conservative justice in Antonin Scalia, who died early last year. It’s expected that Gorsuch will vote like Scalia in key cases, and as a result, have little impact on the ideological makeup of the court.

This filibuster matters not because of what it will do today but of what it promises to do in the future. Imagine if in 2018 or 2019 there is a vacancy on the court. Imagine if the seats of one of the two liberal justices (Breyer or Ginsburg) or the swing vote (Kennedy) were to suddenly open? This would give Trump a chance to alter the future of the Supreme Court in the way he can’t with the Gorsuch nomination.

Imagine further that if in 2017, in a fit of frustration and with hopes of appeasing the base, you filibuster Gorsuch’s nomination and the GOP goes nuclear. Anyone who Trump nominates after that would only need a simple majority to get confirmed. Trump will have a much clearer path to nominating a hard-line conservative than he would if Democrats held their fire this time around.

Imagine if you didn’t filibuster. When Trump makes the same conservative nomination, you would be in a far better position to stall it. Just two months into his administration Trump has the lowest approval ratings of any president in modern American history. He already has alienated members of his party. Even if the GOP holds the Senate after the 2018 election, Trump may not have the support of all the members of his party for this type of conservative nominee. And he wouldn’t be able to meet the 60-vote threshold. Fifty-one, maybe. Sixty much less likely. And if worse comes to worse, you could always reconsider using the filibuster at that point, when it really matters.

All you Democrats have a right to be frustrated by the fate of Judge Merrick Garland, whom Republicans blocked from a vote to the high court last year. Nevertheless, calmer heads should prevail. You should think carefully about what you hope to achieve with a filibuster, and the think just as carefully about everything you could lose, including a court that remains balanced with Gorsuch’s approval.

Jeanne Zaino, Ph.D. is professor of political science at Iona College and senior consultant with Appliedtechonomics