NYT on whether to filibuster Gorsuch now or wait:

The substantive stakes now are relatively low: Judge Gorsuch appears to be very conservative, but so was Justice Scalia. Confirming Judge Gorsuch would merely preserve the ideological status quo on the closely divided Supreme Court. Should the confirmation move ahead, all 52 Republican senators will probably stick together, bolstered by a few Democrats from conservative-leaning states. Those are enough votes to easily clear the way for confirming Judge Gorsuch — and all future nominees — by a simple majority.

But the dynamics could play out differently in a second situation: Judge Gorsuch is confirmed, but the filibuster rule survives. If Mr. Trump then gets to nominate a successor to a moderate or liberal justice, the substantive stakes would be much higher.

The framing for the filibuster fight would be different at that point. It would focus on whether the nominee would provide a fifth vote to overrule the Roe v. Wade abortion rights precedent and create a new conservative majority on other highly charged topics, like guns, affirmative action and the rights of same-sex couples.

Under that second possibility, it may not be inevitable that the filibuster rule falls. Red-state Democrats would be less likely to break ranks, and institutionalist or moderate Republican senators, like Susan Collins of Maine and Lisa Murkowski of Alaska, might be more reluctant to vote to change the chamber’s longstanding rules.

If red state Democrats and Collins and Murkowski can do backward induction, filibustering now or later is equivalent.

Also, if Republicans use the “nuclear option”, this reveals their type to Kennedy who may then defer retirement so he is not replaced by a Trump appointee.

 

Advertisement