Democrats should save the filibuster for a Supreme Court opening that would actually change the balance of power on the court, U.S. Sen. Michael Bennet told the Colorado Independent’s Mike Littwin.
As prominent Democrats line up to support a filibuster to block Judge Neil Gorsuch and Republicans threaten to use the “nuclear option” to get rid of the filibuster altogether, there’s been a lot of attention on Bennet, who is a centrist by nature and, of course, shares a home state with Gorsuch.
Bennet has been playing his cards close to the chest — declining an interview with Politico as recently as last week — but now he’s broken his silence to tell Littwin this is the wrong time to draw a line in the sand.
“I don’t think it’s wise for our party to filibuster this nominee or for Republicans to invoke the nuclear option,” Bennet told the Independent.
“If the nuclear option is invoked that means Gorsuch will be confirmed on the court with a 50-plus-1 vote. He’s going to be confirmed either way. But then the next justice will be confirmed with a 50-plus-1 vote. And the next justice.”
Gorsuch, who is very conservative, has been appointed to replace Antonin Scalia, who was also very conservative, so the 5-4 split on the court, with Justice Anthony Kennedy as the swing vote, won’t change. A Gorsuch appointment maintains the status quo. (Of course, if the Senate had been willing to hold a vote on Barack Obama’s nominee Merrick Garland, the balance of power would have shifted, which is why Republicans refused to give him a hearing.)
As Littwin points out, the next three oldest justices, the ones most likely to retire (or die) during Trump’s presidency, are all more liberal: Kennedy, Stephen Breyer and Ruth Bader Ginsburg. Bennet hopes that by avoiding the nuclear option, Democrats can preserve the filibuster to block an extremely conservative nominee from filling one of those seats down the line.
This is looking like wishful thinking. Democrats announced Monday that they have 41 votes to sustain a filibuster. That said, Republicans could just as easily use the nuclear option to push through a future nominee if Democrats were to back down on Gorsuch.
Littwin calls this a “lose-lose” for Bennet and for Democrats as a whole.
“Bennet makes a rational case. But we live in an irrational time,” he writes. “Do you fight Trumpism strategically or do you fight it at every turn? Senate Democrats, with their 48 votes, are at a loss and have done nothing to prepare the base for what happens when Democrats inevitably lose the Gorsuch vote.”
Politico has a lot of details on the pressure campaign against Bennet in recent weeks.
The Judicial Crisis Network, a well-funded conservative group that is a major player in the Gorsuch fight, has poured $650,000 into radio, television and digital ads promoting the Denver judge on the Colorado airwaves.
More than 200 attorneys in Colorado sent Bennet a letter effusively praising Gorsuch and warning that a “filibuster now will do Colorado no good.” Several signers are Democratic power brokers, including Jim Lyons, a former adviser to Bill Clinton whom the president nominated to the 10th U.S. Circuit Court of Appeals, and Steve Farber, co-chair of the 2008 Democratic National Convention in Denver.
At the same time:
People for the American Way, one of the few liberal groups that has gone on air against Gorsuch, has run an ad in Colorado that features a judge shredding the Constitution. MoveOn is hosting a “Resist Gorsuch” protest at Bennet’s Denver office on Tuesday. And Colorado members of NARAL Pro-Choice America met with Bennet aides last week, walking away dissatisfied.
“We got a very neutral response,” said Karen Middleton, executive director of NARAL Pro-Choice Colorado.