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Is Filibustering Gorsuch A Smart Strategy For Democrats?

In this week’s politics chat, we debate whether the Democratic strategy of filibustering President Trump’s Supreme Court nominee, Neil Gorsuch, makes political sense. The transcript below has been lightly edited.

 

micah (Micah Cohen, politics editor): Are Democrats screwing this whole Gorsuch thing up? That’s our question for today. We’re going to go through the arguments for the Gorsuch filibuster (aka the Gorbuster) and then the ones against. Everyone got it? Good …

First, the pro-Gorbuster arguments, nicely summarized by Bloomberg political reporter Sahil Kapur:

  1. Simple retribution for the GOP’s refusal to consider Obama nominee Merrick Garland.
  2. It would excite and encourage the Democratic base.
  3. Filibustering denies Trump an easy win.
  4. If Democrats filibuster and then Republicans get rid of that option for Supreme Court picks (which they’ve said they will do), Democrats will have an easier time putting liberal justices on the court next time they’re in control.

natesilver (Nate Silver, editor in chief): And the arguments AGAINST are basically …

  1. Democrats need to hold their fire for next time.
  2. Their move would be unpopular.
  3. Opportunity cost (there are better ways to fight Trump).
  4. Even if Gorsuch were scuttled, it’s not clear where they’d go next.

micah: OK, let’s go through the affirmative arguments first.

Pro-Gorbuster argument No. 1: It’s payback for Garland, and that, by itself, makes the filibuster worthwhile.

Go!

clare.malone (Clare Malone, senior political writer): It’s a very natural emotional response for the Democratic base to have — payback time! — and for Democratic politicians to capitalize on, in addition to their own feelings of anger over the way things went down. Politics is as much emotion as it is pragmatism.

harry (Harry Enten, senior political writer): This works only if there are no other consequences for the filibuster. An eye for an eye feels good. But it doesn’t work if there are consequences. The question is whether you view the disappearance of the filibuster (which is likely once Democrats filibuster) as a negative consequence for Democrats.

clare.malone: I think I know what Harry thinks of this filibuster move … but Harry is not running for office, so I think he can discount the emotional response that voters are having — I think a lot of Democratic senators might be thinking of 2018 seats that are up. Claire McCaskill herself said she feared a tea-party-type challenger from the left.

harry: Don’t act like you know me.

natesilver: I’m trying to figure out if I’d vote for Harry. Probably.

clare.malone: What would Harry’s slogan be?

More soda, less tax?

natesilver: “A Car in Every Garage, A Diet A&W Cream Soda in Every Fridge”

Natural although it might be, and as objectionable as the Republicans’ behavior on Garland might have been, the situations aren’t really all that parallel. Mainly because the Democrats aren’t in the majority, and they don’t ultimately have any power. Perhaps if the Democrats take over the Senate in 2018 (which is unlikely, but never say never) they could refuse to confirm any Trump nominees — and that would be payback.

perry (Perry Bacon Jr., senior writer): Is payback a good reason to do anything ever?

micah: OK, what if I phrase the payback argument this way: Democrats have to fight 🔥 with 🔥. Why should they pay respect to Senate traditions/comity if Republicans aren’t?

perry: I think Nate said essentially that payback doesn’t work if you don’t have power. That seems right.

clare.malone: Catharsis, boys. It’s powerful.

natesilver: I’ll note that, Micah, none of the arguments we’re going to make have anything to do with comity. We’re assuming comity is toast. It’s all pure tactics. Plus, the “comity” of the Senate for many years was used to do things such as kill civil rights legislation.

clare.malone: It’s kinda like a “well, we got nothing to lose, right?” argument for payback. Why not satisfy a base hungry for a grand gesture of resistance?

harry: The Gorbuster works as catharsis if you know full well that the nuclear option is going to be invoked, eventually, no matter what. If it feels good for the base and the nuclear option is coming anyway, then why wait?

micah: OK, that brings us to pro-Gorbuster argument No. 2: The filibuster will please and mobilize the Democratic base.

perry: Bingo.

clare.malone: Maybe. That’s their hope.

natesilver: Please, yes. Mobilize, maybe.

clare.malone: See “tea party of the left ” challenge above.

harry: I keep answering every question with a question. The bet here is that pleasing the base is worth antagonizing the center of the electorate.

clare.malone: Very Trumpian!

perry: The base is already motivated. The members are not leading here; they’re following. Is that smart? I think the base was very effective on health care. An energized base is key for Democrats in next year’s midterms. And does the center of the electorate care about Senate tactics the year before?

natesilver: Yeah, if you look at the polling on Gorsuch, strong support for confirming him actually exceeds strong opposition, which is the opposite of most issues right now. (In most other cases, the enthusiasm gap is working against Republicans.)

harry: This I’m less sure on, to be honest. Take a look at the most recent YouGov poll. Just 23 percent of Democrats have a very unfavorable view of Gorsuch. That’s nearly equal to the percentage of independents who have a very favorable view (18 percent). It’s also far less than the percentage of independents who have a favorable view of Gorsuch (36 percent). So I’m not sure there is all this energy on the left. Maybe the super left?

micah: So if this requires two steps — mobilizing the base and that being more beneficial than alienating the middle in red-state Democrats’ home bases — doesn’t that suggest this is a bad reason to Gorbuster?

perry: When I think of the “base,” I’m thinking more 1. people who give money, and 2. people who go to town halls and protests, more than rank-and-file voters. Say Indivisible, MoveOn.org. Those groups want a fight.

natesilver: It’s like: I’m sure Democrats like the idea of their party FIGHTING BACK!!! And I’m sure they care a lot about Supreme Court nominations. But somehow, the whole doesn’t quite equal the sum of the parts here, and the polling suggests that the Democratic base isn’t all that worked up about this issue. That could change depending on how things evolve.

harry: Right, it can change. Thinking Robert Bork in 1987, whom the public liked less over time.

clare.malone: Maybe Democratic senators are overcorrecting — they don’t want to be perceived as being inactive or inattentive to their base. But the polling mentioned above gives a good shot of perspective. Media covers the town hall protests and gets the Indivisible press releases that are basically calling for blood. But not everyone who votes Democratic loves that look.

natesilver: Gorsuch has already gotten a lot of the way through the process. So I don’t know that opinions about him are liable to change that much. But perhaps if they play their cards right, Democrats can make Republicans look bad by destroying the filibuster.

micah: Clare and I were talking the other day about the fact that this Gorsuch fight is coming relatively early in the 2018 cycle. So Democrats’ attention is naturally on their primaries. Is that having an effect here?

clare.malone: I.e., people could have more time to mount a challenge to McCaskill in Missouri or Joe Donnelly in Indiana or whoever it may be.

natesilver: Possible. The energy/activism on the Democratic side is in the liberal half of the party now.

harry: Some people in the base want to challenge Joe Manchin in a primary because of this and other votes he’s made.

natesilver: To make one more general background point: We’ve never had a president who was so unpopular so early in his term. So a lot of the strategy here feels unfamiliar. I tend to think that Democrats wouldn’t be filibustering Gorsuch if Trump’s approval were 60 percent instead of 40 percent.

micah: OK, pro-Gorbuster argument No. 3: The filibuster denies Trump an easy victory.

(This is a stupid argument, so let’s dispense with it quickly.)

clare.malone: Yeah, I think that’s the weakest one.

perry: That is the worst argument. Filibustering means making the Gorsuch nomination into an even bigger story, which makes Trump a big winner on an issue on which he was always going to win anyway.

natesilver: People seem very skeptical of this argument, although I suppose one can argue that Trump makes a lot of unforced errors and could find a way to bungle this or otherwise shift public opinion in Democrats’ favor.

harry: I’m not sure it’s that stupid. Momentum can matter in politics. (Whatever “momentum” is.) And why let up on Trump now? Make sure he doesn’t get to claim bipartisanship.

micah: I find both those arguments totally unconvincing.

Perry is right. Trump is gonna win — all Democrats are doing is raising the fight’s profile.

clare.malone: Can we … MoveOn.org?

micah: Pro-Gorbuster argument No. 4: The Gorsuch filibuster forces the elimination of the filibuster on Supreme Court nominations, so when Democrats get the White House back they’ll be able to more easily get their judges through.

natesilver: This is a decent argument, I think.

harry: Of course, this assumes that Democrats wouldn’t have a majority in the Senate the next time they control the presidency. Because if they did, they could just nuke the Supreme Court filibuster then.

natesilver: It probably requires going through the math/scenarios in a bit more detail. But you can fairly easily imagine a scenario where Democrats have the presidency and a narrow Senate majority in 2021 or 2025. On the time scale of Supreme Court nominations, that’s not that long from now.

micah: But isn’t Harry right? If they have a Senate majority, they can nuke the filibuster themselves.

clare.malone: True (to Nate’s point), but there are a lot of old judges on there now …

natesilver: But maybe they have some Manchin-y Democrats in like a 51- or 52-seat majority who are reluctant to nuke the filibuster. If you game it out, the path to Democrats winning a Senate majority at some point in the next six years begins with their holding several of their seats in red states next year.

micah: But the Gorbuster doesn’t help them hold those seats.

natesilver: Conditional on winning the presidency in 2020, the Democrats will probably also control the Senate. But they almost certainly won’t have a filibuster-proof majority or anything close to it.

perry: I doubt anyone will be voting against McCaskill for this Gorsuch move who was not voting against her anyway. There is nothing to lose next year.

clare.malone: I dunno. Maybe there is! 2016 could have been enough of a climate change for voters.

natesilver: I guess my point is just … beyond the next 3.5 years, it’s pretty uncertain/random who the filibuster will help or hurt.

perry: A fifth pro-Gorbuster argument: policy. Garland was going to vote like Ruth Bader Ginsburg on most issues. The GOP was right to argue that he was not “moderate” in any meaningful way. Gorsuch is going to vote like Samuel Alito/Clarence Thomas is my guess. On issues, there is no “worse” nominee coming down the pike for Democrats. Gorsuch is bad for liberal views. Probably really bad.

harry: Yep. He’s really conservative.

natesilver: Well, elections have consequences. That might be an argument why Gorsuch sucks for liberals, but it isn’t a way for them to do anything about it.

clare.malone: Yeah, but he’s still gonna get through, and they know that. Are we saying here that people would change their minds if they knew this?

micah: I think the argument Perry is laying out is this one: Saving the filibuster for a “worse” Trump Supreme Court pick doesn’t really make sense.

harry: Of course, it could be argued that it would be better to save the filibuster for someone who is going to change the court’s ideological complexion. You’re filibustering a conservative who is replacing a conservative.

clare.malone: Right, it’s a balance of the court thing.

natesilver: 🐑

That sheep, Harry, was because I was looking for a lamb emoji and couldn’t find one. And I was looking for a lamb emoji because I find that argument lame.

A win in Game No. 1 matters just as much as a win in Game No. 162, in terms of the final standings.

micah: Well, it also depends on whether you see this as Scalia’s seat or Garland’s seat.

natesilver: It’s the people’s seat!

clare.malone: It’s Scalia’s seat. Let’s not get too cute.

micah: OK, let’s move on to the anti-Gorbuster arguments.

We kinda covered a lot of this, so we can go more quickly, but …

Anti-Gorbuster argument No. 1: Democrats need to hold their fire for Trump’s next Supreme Court pick.

clare.malone: So. This one isn’t realistic in the world we live in. But I buy it a lot more than the one we just discussed above.

The seat that’s open is Scalia’s seat — the world we live in, because of Republican opposition — and that means that adding Gorsuch to the court allows it to maintain its balance from recent years. Anyone else going forward, if they’re replacing a liberal justice, would tip the scales. Now, the Democrats aren’t going to be able to actually block that person should a seat come up soon (which it might!). But the argument makes a lot more sense to me.

harry: To believe this, you’d have to believe the following things: 1. Trump will be as unpopular as he is now. 2. Republicans will be willing to not nuke the filibuster if there is a more problematic nominee. 3. Trump will get to nominate someone else to the Supreme Court.

natesilver: But is Mitch McConnell — who will be under a lot of pressure from HIS base to appoint a really conservative nominee — really going to be unwilling to use the nuclear option to change the composition of the court for three decades?

micah: Yeah, I buy this argument in that it might be easier for Democrats to rally their voters on the next nominee. But Nate’s right: It will also be easier for Republicans to rally their voters.

natesilver: I can imagine a very narrow window where this argument holds up. Like if Trump nominates someone underqualified or someone who has vetting problems. Then again, someone with big vetting problems might not get 51 votes with or without the filibuster.

micah: OK, anti-Gorbuster argument No. 2: It will be unpopular.

Do we have polling on this?

natesilver: Roughly speaking, the polling suggests that the Gorbuster will be unpopular but that invoking the nuclear option will be unpopular too.

clare.malone: But there is also polling that shows people want him to be given a vote.

natesilver: Opinion on these questions is also fairly unsettled.

The point is, Democrats could gain some points with the public by Chuck Schumer going up there and saying, “McConnell is destroying decades’ worth of precedent.”

clare.malone: But then I do think voters won’t remember for too long …

harry: How about this poll? “Suppose all or most of the Democrats in the Senate oppose Gorsuch’s nomination. Do you think they would be justified — or not justified — in using Senate procedures, such as the filibuster, to prevent an up-or-down vote on the nominee?” 51 percent said justified.

perry: Remember how big an issue the nuclear option used by Democrats in 2013 was in the 2014 elections? No one remembers, because it wasn’t an issue. I’m just skeptical this is a voting issue, with Trump/Russia and who knows what else happening by November 2018.

clare.malone: Yeah … how long will it resonate that Mitch McConnell is a precedent-destroying devil? Maybe it will for a long time! I dunno. I don’t think it’s a sure thing, though.

natesilver: I guess my summary is that I read public opinion as being mostly against Democrats on this issue, although with some ambiguity. And the thing is, their messaging on Gorsuch hasn’t been very good. Just within the past couple days, Democratic National Committee Chairman Tom Perez was tweeting about how Gorsuch was unqualified, which is neither a good argument on the basis of the facts nor an on-message one.

harry: I’m inclined to agree that public opinion is on the whole against Democrats, but I’m not sure it is particularly strong. Hence, I’m not sure they’d see a major backlash.

clare.malone: Hey, remember how the new Democratic National Committee chair was gonna change it all??

micah: At some point I want to do a chat on “Are Democrats just worse at politics than Republicans?”

clare.malone: Uh …

ahem, ahem

To be fair to the Dems, it is more difficult to be a big-tent party — there are more Democrats, plain and simple. They’re trying to marry a lot of different coalitions right now; black and brown middle class, white middle class (that maybe voted for Trump) culture issues, etc., etc. And I think that makes for a lot of diddling on message, even if they say that they’re “fixing the messaging problem!”

natesilver: So one party lost pretty much everything you can lose, and the other one has a president with a 40 percent approval rating 75 days into his term. It doesn’t seem like either party is all that good at politics.

micah: We shouldn’t debate this now, but I think there’s a messaging/metaphor-ing thing that Democrats have never figured out as well as the GOP — the Frank Luntz, “death tax” part of politics.

Anyway.

Anti-Gorbuster argument No. 3: There’s an opportunity cost to filibustering Gorsuch (i.e., there are better ways to fight Trump).

clare.malone: Yep. Let’s just have some perspective here — this whole drastic scenario wasn’t always a foregone conclusion.

harry: There are better ways. But that supposes there’s a limited supply of will to fight Trump. The fight this week is Gorsuch.

perry: Democrats kind of accounted for this. They focused more on health care and Russia than Gorsuch last month. So in some ways, this is true (there is an opportunity cost to fighting Gorsuch), which is why Dems will end up spending basically a week on Gorsuch, compared to multiple weeks on health care policy and Russia.

natesilver: Democrats have a lot of battles to fight where public opinion is more on their side and/or there’s more chance for Republicans to self-immolate (they’re pretty unified on Gorsuch).

I guess you could argue that making the confirmation harder requires Republicans to use up precious days on the legislative calendar, but that seems pretty weak-sauce.

harry: I’m with Mr. Bacon on this one.

micah: Lastly, anti-Gorbuster argument No. 4: Even if the Gorsuch nomination were scuttled, the nominee Trump picks in his stead would likely be just as bad from Democrats’ point of view.

This seems self-evidently stupid. (This is Nate’s argument, btw.)

harry: It is stupid.

micah: If Democrats scuttled Gorsuch, that would be a huge win for them no matter what comes next.

clare.malone: Who would they get next? They would get someone of the same ilk.

natesilver: Wait, why is this stupid?

micah: It would weaken Trump, which makes it harder for him to enact his agenda, which Democrats oppose.

natesilver: He’d just nominate someone else who was a lot like Gorsuch, probably.

micah: But the administration would be significantly weakened.

natesilver: Meh? On the off chance Republicans don’t go nuclear, it seems like more a statement about Susan Collins or whomever than about Trump.

clare.malone: Snap.

micah: Wait, what?

natesilver: I guess you could wind up in a stalemate where nobody was nominated for a long time.

harry: I think spin the wheel. You could get someone more moderate, so that’s why I’m not in love with this argument. I mean Thomas Hardiman, the supposed runner-up to Gorsuch, was seen as far more moderate.

clare.malone: I don’t think the Trump administration would go with a moderate, though. That seems very unlikely.

Stalemate does seem more likely.

perry: If Republicans somehow blocked Trump’s nominee (let’s say Collins, John McCain and Lisa Murkowski voted against the nuclear option), that would be a huge story. And it would fit into the general theme that, as on health care, Trump can’t get his own party behind him. That would be covered as a story about Trump failing even to win easy fights.

natesilver: Perhaps, but Democrats haven’t been framing the argument correctly. They should have been saying, “Gorsuch may be well-qualified, but he’s too radical/conservative for an evenly divided country, especially given what went on with Garland, and that’s what the 60-vote threshold is all about.”

Instead, Perez is attacking him on qualifications rather than ideology. Which is exactly the wrong argument to make if you eventually want to wind up with a moderate.

micah: I’d bet my left arm the story would be covered as Perry describes. No matter what Democrats do. It’s the default frame from the media’s perspective.

perry: You know, I hadn’t thought of this before, but I guess one argument for doing the filibuster is the unknown. We assume the Republicans will vote for the nuclear option. But we don’t know that yet. If you can temporarily block Trump’s nominee, that is a big win.

micah: Maybe they’d nominate Maryanne Trump Barry if Gorsuch goes down.

natesilver: Judge Napolitano.

harry: Judge Reinhold.

natesilver: Reinhold’s got vetting problems.

clare.malone: Someone please end this.

micah: So Democrats are filibustering Gorsuch, so this is all academic in a way, but to close us out here: Which side had the better argument here — pro-Gorbuster or anti-Gorbuster?

One word answers please.

natesilver: Antigorbusterintheshorttermbutyoucanmakeaprettygoodargumentthatitisindemocratsbestinteresttokillthefilibusterinthelongterm.

clare.malone: Anti. Also, I think that’s a German word, right, Nate?

harry: Neither.

natesilver: BOOOOOO.

micah: Cop-out.

natesilver: 🐑

micah: Nate and Harry wimped out.

Perry?

perry: Pro.

micah: Final score:

Pro-Gorbuster: 1.

Anti-Gorbuster: 1.

Totally wimped out: 2.

Nate Silver is the founder and editor in chief of FiveThirtyEight.

Harry Enten is a senior political writer and analyst for FiveThirtyEight.

Clare Malone is a senior political writer for FiveThirtyEight.

Perry Bacon Jr. is a senior writer for FiveThirtyEight.

Micah Cohen is the politics editor.

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