The end of the filibuster for Supreme Court nominees was a defeat for Democrats, ensuring that the seat vacated during Barack Obamaâs presidency would be filled by Donald Trump. But on Thursday, across the Capitol, the Democrats who had filibustered Neil Gorsuch â all but four of the caucusâs 48 senators â described it as a short-term political defeat in the service of a greater caucus.
âTo save an historically unpopular president from further embarrassment, Senate Republicans had to go nuclear and blow up a 100-year-old requirement that votes of extreme national significance be bipartisan,â the Center for American Progress said in a celebratory statement of defeat. âIt is one of the most craven and partisan moves in generations, and Senate Republicans will own that reality during recess and for years to come.â
At a morning rally with progressive groups and labor leaders, three of the Senate Judiciary Committeeâs Democrats framed the ânuclear optionâ in stark political terms â a power grab that Republicans had undertaken because the old rules would have blocked something unpopular.
âWe are going to continue fighting for a womanâs right to determine her reproductive decisions,â said Sen. Richard Blumenthal (D-Conn.). âWeâre going to continue fighting for same-sex couples to be able to marry the person they love.Â Weâre going to continue fighting for the workers who go to their jobs every day and they expect to be safe and come home to their wives and children.â
The Democratsâ decision to filibuster Gorsuch, knowing it would end the filibuster in future battles, was a product of cynicism about the workings of the Senate and frustration at how the open seat had been fumbled away. In interviews Thursday, Democrats previewed a new message about the court that focused less on comity and more on political issues, one they regretted had never gotten through to voters before.
âI donât think there was a speech I gave where I didnât talk about the importance of the Supreme Court,â said Sen. Bernie Sanders (I-Vt.), a 2016 presidential candidate. âThe message, I think, is: We donât change America unless we increase voter turnout, and we get greater public consciousness. Itâll be difficult to do that with Citizens United still standing, and with voter suppressionÂ taking place. And those are issues that come right before the Supreme Court. I think a lot of people are not fully aware of the impact of the Supreme Court on workersâ rights, on the environment, on womenâs rights, and weâve got to do better at communicating that.â
In 2016, as in every close election, Democrats warned some of their reluctant base voters that the Supreme Court was at stake. The message was more credible than ever â the February 2016 death of Antonin Scalia gave Obama the first chance of any Democrat since Harry S. Truman to replace a conservative judge with a liberal.
But liberal voters didnât bite. A historic number of liberals cast protest votes for the Green Party or, as write-ins, for Sanders. In two fateful swing states, Michigan and Wisconsin, the protest votes easily outpaced the margin by which Trump defeated Democratic nominee Hillary Clinton. In the exit poll, 21 percent of voters said the Supreme Court was the âmost important factorâ in their decision â and those voters broke for Trump by 15 points.
The problem, said some Democrats, was that liberals got a little too cocky about winning the future, while groups like the National Rifle Association were urging voters to get over their qualms with Trump and save the Second Amendment from Clinton.
âSocial change is moving in one direction, towards more inclusive, tolerant policies,â Sen. Chris Murphy (D-Conn.) said. âThat tends to invoke the passions of conservative voters who fear that their countryâs values are moving away from them.â
At the start of the Gorsuch fight, several Democrats were considering a punt â letting the nominee through, with a promise that an open seat that would shift the courtâs balance would still be subject to a 60-vote threshold.
They gave up for two reasons. One was that they came to see Republicans as entirely cynical about the filibuster and not trustworthy to stick to a âdeal.â If a liberal justice were to die in the next four years, it seemed clear that Republicans would have a new casus belli to nuke the filibuster. Asked Thursday whether he would have gone ânuclearâ in such a situation, Sen. Orrin G. Hatch (R-Utah), the longest-serving member of the party in the Senate, seemed surprised by the question.
âWell, yeah!â said Hatch. âIn my eyes, the best interest is not having another far-left liberal on the court.â
The second reason was that Gorsuchâs confirmation hearings suggested what had been lost in the campaign â that politically, Democrats had stronger positions on the issues facing the court than conservatives did. In their statements announcing their ânoâ votes, Democrats from red and blue states generally argued that Gorsuch could not be trusted to uphold campaign finance law or labor law.
The GOP will be responsible for every 5-4 decision that throws working Americans under the bus to favor the powerful, moneyed few.
â Elizabeth Warren (@SenWarren) April 6, 2017
The campaign for Gorsuch didnât contradict this. The Judicial Crisis Network, which ran ads against Obamaâs nominee for the seat, ran commercials for Gorsuch that presented him not as a conservative, but as a neutral arbiter. In Montana, it chided Sen. Jon Tester (R-Mont.) for opposing a fellow âWesterner and outdoorsman.â In Colorado, it pointed out that the Denver Post had endorsed both Hillary Clinton and Neil Gorsuch.
And in âOnly the Law,â its national spot, the organization played a quote from Gorsuchâs opening statement: âI have ruled for disabled students, for prisoners, for the accused, and for workers alleging civil rights violations, and for undocumented immigrants. Sometimes, I have ruled against such persons too.â (Gorsuch had diverted from his prepared text by adding âundocumented immigrants.â)
That fed into the reason Democrats had been so hesitant to change Senate rules: Doing so was unpopular. A Quinnipiac national poll released Wednesday found Gorsuchâs nomination supported by a 50-to-35 margin, similar to the one Obama nominee Merrick Garland had enjoyed. But by aÂ 67-to-25 margin, voters said they disapproved of the ânuclear optionâ and wanted to keep a high confirmation threshold.
In 2016, Democrats discovered that core voters tuned out on the court. Looking atÂ 2018, they are not optimistic about gaining control of the Senate, which is now the only way they would have enough votes to stop a Trump nominee. But as the Gorsuch fight ended, all but four of them â and virtually every progressive group â had settled on an argument about the court. Republicans appointed right-wing judges, and they changed the rules to do so.
âFour years ago, Democrats, facing incredible, unprecedented obstructionism, decided to change the rules,â Sanders said. âBut with the Democrats in control, what they also said â I was in the room, and there was a debate â was no, not the Supreme Court. Itâs so important that it does not become a place where you can just ram someone in.â