Muftic: Gorsuch vote a game of chicken (column)
April 4, 2017
The nomination of Neil Gorsuch to the Supreme Court and the process of Senate confirmation is beginning to look like a game of chicken. Both the Democrats and the Republicans are threatening each other. The Republicans threaten a rule change if the Democrats carry through with their threat to filibuster the confirmation. If the GOP changes Senate rules, they may even damage the future effectiveness of the Supreme Court to act as one of the three legs in our country's balance of power system and they are gambling that their maneuver would not backfire on them later. The full Senate vote is scheduled for this Friday.
Democrats ought to be careful what they wish. The Democrats are in a weak position of not having enough Senators (48 of 100). At least three Democrats have already declared they will vote in favor of Gorsuch. In the short term whatever the Democrats do might make little difference. Gorsuch can be confirmed by a GOP rules change. Democrats are gambling, too.
The more critical confirmation will be when the next vacancy occurs, which, depending on the timing, might forever cement the court into a decisive ideologically conservative majority, lasting decades.
The Democrats are facing a difficult choice of whether or not to force the GOP to change Senate rules in order to save Gorsuch's confirmation. All but three Democrats are already pledged to vote no on Gorsuch, making it still difficult for the GOP to get 60 votes as rules now require. It may be satisfying, emotionally, for Democrats to get revenge for GOP failure to even consider the Obama nomination, but it would not change the court makeup.
A conservative Gorsuch is replacing a conservative Scalia. Approving Gorsuch now only makes the court balance the same as what existed before the vacancy, split 5 to 4 one way or the other on many decisions.
The GOP ought to be careful about changing rules, too. The GOP leadership is threatening to stop a filibuster by Democrats by changing Senate rules from the sixty votes needed for confirmation to a simple majority. That rule change is called the "nuclear option" because it could weaken one of the three branches of government that check the power of the executive and legislative branches by making the court even more partisan than it is now.
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The rule change makes it easier for the GOP to replace a liberal seat with a conservative judge in the near future. It also could come back to haunt the GOP making it easier for Democrats to get their nomination confirmed, depending on when the next vacancy occurs and if the GOP maintains its Senate majority at that time.
Let us hope the GOP does not drop the nuclear option bomb. It would set a precedent that all future confirmations more likely would be decided on an even more partisan or ideological basis than now, with the majority party always determining the confirmation. This is weakening the court's credibility as an independent body tasked by the Constitution with interpreting the constitutionality of laws. Keeping the sixty vote requirement at least makes it more likely a nominee would have to have to gather support from the minority party, with nominees having more bi-partisan, centrist appeal.
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