When Supreme Court justice Antonin Scalia died last year, Senate minority leader Harry Reid promptly issued a statement commanding Senate Republicans to approve a replacement—whomever President Obama might choose to nominate—“right away.” Refusal to act would be a “shameful abdication,” he added. He was joined by then-presidential candidate Hillary Clinton and others in a chorus of preemptive denunciation against any delay.

Senate majority leader Mitch McConnell had other ideas. “The American people‎ should have a voice in the selection of their next Supreme Court Justice,” McConnell said in a statement issued shortly after Scalia’s death. “Therefore, this vacancy should not be filled until we have a new president.” He was joined by Senate Judiciary Committee chairman Chuck Grassley and, soon, the entire Senate Republican caucus.

Progressives across the nation were outraged—but confident. In fact, many of them were doubly confident. First, Senators Reid, Chuck Schumer, and others simply assumed that the Republicans would cave. “McConnell will back down,” Reid’s spokesman boasted to the press. Second, progressives nationwide expected the next president to be Hillary Clinton, and so they assumed Republicans blocking a vote until Election Day would simply be cutting off their own noses to spite their faces by letting Clinton pick the next justice—and, they chortled, the next justice would be someone much less restrained than President Obama’s nominee, Judge Merrick Garland.

Just a week before the November election, Reid said that if Republicans were to continue to hold open Scalia’s seat after the election, it would be a “constitutional crisis.” But days later, the situation looked starkly different: Clinton’s loss, combined with the Democrats’ failure to win back the Senate, meant that President Trump would be picking Scalia’s successor and that a majority of senators was likely to support the nomination. With the tables turned, the Democrats suddenly concluded that they would need to block Trump’s nominee.

For Democrats, this was a shameless about-face. They had spent 2016 calling a vacant Supreme Court seat a constitutional crisis. Even Justice Ruth Bader Ginsburg had taken up the Left’s rallying cry, repeatedly telling reporters that the Constitution entitled Garland to a confirmation vote. Unfortunately for Justice Ginsburg and like-minded progressives, their constitutional argument was simply make-believe. Their assertions lacked any support in the Constitution and were at odds with the history of Senate confirmation of Supreme Court nominations. Over the course of 2016, however, progressive activists began to believe their own spin. They’re now convinced that the still-vacant Supreme Court seat was “stolen.”

Senator Jeff Merkley of Oregon expressed this view in a New York Times op-ed, accusing Republicans of “pulling off one of the great political heists in American history: the theft of a seat on the United States Supreme Court.” In response to Trump’s nomination of Judge Neil Gorsuch to fill the Scalia seat, Merkley and others are calling upon new Senate minority leader Schumer to filibuster the nomination.

A filibuster would be the height of hypocrisy for Democrats, given their posture last year. Moreover, just three years ago, Senate Democrats used the so-called “nuclear option” to change Senate rules and prohibit any filibuster of lower-court nominations. The nuclear option netted Democrats three powerful D.C. circuit judges, whom Reid and others soon credited for standing ready to protect Obamacare and other regulatory programs in court. Now that Democrats no longer control the White House, they returned to their Bush-era position as the party of judicial-nomination filibusters.

The Gorsuch nomination puts Schumer and his colleagues in a spot. Progressives are demanding a filibuster, but the costs would be steep. Republicans would be likely to counter by using the Democrats’ own tool—the “nuclear option”—to prevent filibuster of any future Supreme Court nominations by President Trump, should any more vacancies arise. And more vacancies are possible, even likely—perhaps the seats of the 83-year-old Ginsburg (whom Democrats were pushing to retire before the end of Obama’s term) or 80-year-old Justice Anthony Kennedy, the “swing” justice rumored to be contemplating retirement. The Washington Post recently reported that Democrats are urging Ginsburg to keep up her health, exercise more, and “eat more kale.” “I have O-negative blood that she’s welcome to at any time,” said a University of Michigan lecturer.

While Gorsuch’s judicial approach might most closely resemble Scalia’s (as suggested by Gorsuch’s remarks in honor of Scalia last year), the closest comparison for the upcoming confirmation fight might be the one that ensued for John Roberts’s 2005 nomination to succeed William Rehnquist. Like Gorsuch, Roberts was nominated to replace a conservative, and like Gorsuch, Roberts had credentials beyond criticism. Both men present themselves well in public. Gorsuch may not get as many votes as Roberts did, but given the number of Democratic Senators facing reelection in states that voted for Trump, Gorsuch’s margin of victory should be comfortable.

Moderate Republican senators such as Lindsey Graham and John McCain have expressed nominal reservations about using the nuclear option to confirm Gorsuch. If Senate Democrats do filibuster Gorsuch, though, then McCain, Graham, and others could rightly conclude that Democrats would filibuster any conservative nominee. Schumer is surely smart enough to know that he ought to let Gorsuch replace the like-minded Scalia and save the filibuster for the next nomination—the one that could significantly tip the Court’s ideological balance. The question is whether progressives’ inflamed passions will allow Senate Democrats to hold their fire until then.

Photo by Alex Wong/Getty Images


City Journal is a publication of the Manhattan Institute for Policy Research (MI), a leading free-market think tank. Are you interested in supporting the magazine? As a 501(c)(3) nonprofit, donations in support of MI and City Journal are fully tax-deductible as provided by law (EIN #13-2912529).

Further Reading

Up Next