Yesterday, the Senate Judiciary Committee approved Judge Neil Gorsuch for a full Senate confirmation vote to replace Justice Antonin Scalia. However, the majority of Senate Democrats refuse to vote for cloture and are moving toward a filibuster. While it is not the first time that the Democrats have tried filibustering Supreme Court justice candidates, this move is an unprecedented obstruction in which the Democrats do not wish to give Gorsuch a clean confirmation not because of the merits of his legal jurisprudence, but rather because they remain bitter that the Republicans stonewalled Chief Judge Merrick Garland.

If the Democrats attempt to filibuster, then Sen. Mitch McConnell (R - KY) could utilize the nuclear option, where a simple majority of 51 senators can kill the filibuster and move toward a floor vote on Gorsuch. This would be the first time the nuclear option has been triggered since former Senator and Minority Leader Harry Reid used it for other judicial and executive branch nominees back in 2013. Reid's successor Chuck Schumer (D - NY) now regrets that it happened, but it does not change the fact that he is leading his party to killing Supreme Court justice filibusters in the near future.

While it is very unlikely that the Democrats will successfully block Gorsuch from becoming the next Supreme Court justice, the Democrats will do far more harm to themselves than they could to Republicans. In forcing the Republicans to kill the filibuster, the Democrats open the door to having President Trump nominate a more conservative justice like Judge William H. Pryor, Jr. of the Eleventh Circuit Court of Appeals. As Daily Wire contributor Josh Hammer wrote in The Resurgent after Trump won the election:

Pryor is properly skeptical of the legal malarkey (however one feels on the underlying policy merits) of the landmark Miranda v. Arizona case—thus evincing his willingness to flout flawed legal precedent and stare decisis norms, even in the context of a nearly-unanimously popular underlying policy—and is properly skeptical of most Eighth Amendment challenges. He has upheld voter ID legislation, and can be more generally counted upon for all the constitutional issues near and dear to the hearts of conservatives: Second Amendment rights, religious liberty, structural federalism, and others. In the realm of statutory interpretation, he is a reliable textualist. And, largely due to his comments on abortion during his confirmation hearing, his nomination would be a delectably aggressive culture war salvo against a vapid and sclerotic progressivism that was just electorally obliterated last night.

Pryor's views on abortion would especially anger Democrats since he famously said that Roe v. Wade is "one of the worst abominations of constitutional law." Given how little patience Trump has for the Democrats for wanting to filibuster a judge whom the Senate unanimously placed on the Tenth Circuit, Trump is very likely to push for a Judge Pryor nomination. While his views on stare decisis (the legal principle that precedent should determine subsequent litigation) do not match those of Justice Clarence Thomas, Pryor would likely challenge additional abominations in constitutional law, including Wickard v. Filburn, Kelo v. City of New London, and other Supreme Court decisions that distort the framers' vision of federal government of limited powers. This is a victory for conservatives.

In addition, Jonathan Tobin wrote in National Review that Democrats in red-states who vote against cloture on Gorsuch face tough challenges in 2018.

Those Democrats, such as Montana’s Jon Tester and Missouri’s Claire McCaskill, who are heeding the base’s demand to oppose Gorsuch are making a calculated gamble about their political future. If they vote to filibuster him, they will probably not be challenged from the left during the primaries. They also would be ensuring that the base goes all out to help them in the upcoming midterms. The risk is that a filibuster vote would leave them wide open to the charge that they are obstructionists determined to hamper the president and that they serve only the interests of the Left, even when facing center-right electorates.

Tobin also said that the Democrats will illustrate that they are playing hard on the progressive party line and have no regard for moderate and Blue Dog Democrats in states that voted in favor of Trump in the 2016 election. Those Democratic senators are at risk of losing their seats to Republicans, expanding the Republicans' control over the Senate. Such actions by red-state Democrats places Trump in a perfect position to possibly alter the makeup of the Supreme Court to being the conservative equivalent of the Stone Court back in the 1940s. This presents an opportunity for constitutional law to move toward federalist principles of limited government, state sovereignty, and the protection of individual rights like free speech, religious freedom, gun ownership, right to private property, and due process.

The Democrats may believe that this filibuster will help solidify their chances of effectively resisting President Trump. However, the only thing the Democrats are fighting against is their ability to retain the trust of the American people who already refused to give them power in Congress, the White House, and subsequently, the judiciary. Once their regressive "progress" gets torn apart at the seams, they also relinquish their right to complain.

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