How should Democratic Senators vote on Neil Gorsuch? This is an interesting question. On the one hand, Gorsuch is undoubtedly qualified, so this would suggest that Democrats have to vote for him, since his credentials are impeccable. And in normal times, that would be the end of it. However, these are not normal times. Because if qualifications were all that mattered, Merrick Garland would be sitting on the Supreme Court right now, and Gorsuch would not have even been nominated. That the seat is even open is the result of absolutely unprecedented norm-breaking behavior.
In legal theory there is a metaphor called “fruit of the poisonous tree”. It is usually applied to improperly obtained evidence, and maintains that no matter how compelling the evidence, if it was obtained improperly it cannot be admissible. Applying that logic to Gorsuch, because the nomination was improperly obtained, the qualifications of the nominee no longer matter. Democrats should vote against him, and even filibuster. Because the nomination was improperly obtained.
So what happens if the Democratic Senators filibuster a perfectly qualified nominee? Isn’t that unprecedented? Sure, as unprecedented as not holding hearings on a supremely qualified nominee. And it would be signaling that, whatever ultimately happens, Gorsuch is an illegitimate Supreme Court Justice. Because one way or another, Gorsuch is going to end up on the Supreme Court. Now he can end up there with Democratic support, or without. And if Democrats vote for Gorsuch, they are legitimizing the stolen seat. If they all withhold assent, it will be a lot harder to argue that the coming radically conservative Supreme Court (that will be tilting the country radically towards corprotocracy for decades) is really the product of a legitimate Constitutional process.
If Democrats filibuster, in the short term that will continue the paralysis of the current Supreme Court. And we are already familiar with all the reasons why that is a bad thing. But it is not as bad as legitimizing an unconstitutional power grab. And if the filibuster lasts too long, it may cause the Republicans to end the filibuster permanently. And that is not necessarily a bad thing, even if it puts Gorsuch in the Supreme Court.
For a decade we have been hearing what a horrible thing it would be if the filibuster were to end, and how it is a really important Senate tradition. But if you have been paying attention, there are some equally compelling voices over the past five years or so pointing out that the routine use of the filibuster has broken the Senate. Filibusters have gone from a once-a-decade tool to being employed on every single last piece of legislation. And this has changed the Senate from a majority rule body to a super-majority rule body. To the point that we routinely hear in the press that a bill failed in the Senate because it did not have the necessary 60 votes (60 being the number required to override a filibuster so the bill can go for a general vote, where it needs only 51 to pass). But this is unconstitutional. The Senate was designed to be a majority-rule body. So let the Republican end the filibuster and return the Senate to a simple majority-rule body as the Constitution intended. And then they can approve Gorsuch with zero Democrats voting for. And the Republicans can advance their agenda as the Constitution allows. And the Republicans can face the voters in 2018 and 2020 on their record. And if there is suddenly a Democratic majority in 2020, well, the new majority can then pass a whole bunch of new legislation, just as the Constitution intended. And without a filibuster.