More than the Bostock decision itself, structural defects in legal conservatism spell trouble for its future as a cohesive movement.
The threatened filibuster by the Democrats of Judge Neil Gorsuch seems irrational if its purpose to help create a Supreme Court more friendly to Democratic commitments. Almost everyone expects the response by the Republicans will be the so-called nuclear option by which they use their majority to end the filibuster rule for Supreme Court nominations. The Republicans believe that filibustering a mainstream judge in the first year of a President’s term is illegitimate. Given that in 2013 the Democrats eliminated the filibuster for lower court and executive appointments, they will also regard themselves fully justified in taking a similar action themselves. And the Republicans will be acting within their constitutional rights: as Mike Rappaport and I have shown, the Senate majority must have the authority to change supermajority rules by majority vote.
The elimination of the filibuster leaves the Democrats in a worse position for the rest of President Trump’s term. The most obvious reason is that they then cannot filibuster the next nomination— the one likely to fill the seat of Justice Ginsburg or Justice Kennedy. And the confirmation of that judge would, unlike that of Judge Gorsuch, change the balance of the Court, potentially transforming all sorts of doctrines in ways Democrats would despise.
Now some academics, like Sandy Levinson, have argued that Democrats lose nothing by filibustering, because the Republicans would just get rid of the filibuster at the time of the next nomination. But that is not at all clear. First, the nominee might have more problems than Gorsuch. Second, some Republican Senators, like Susan Collins and Lisa Murkowski, would worry about imminent changes to the law on issues like abortion rights that the confirmation of a second conservative justice might elicit. More dispassionate commentators, like Rick Hasen, understand this difference and recommend against filibustering Gorsuch.
Moreover, the threat of filibustering Supreme Court nominees is more helpful to Democrats than to Republican as a general matter. Because the current of our legal culture runs so strongly left, Democrats can nominate apparent moderates with some substantial confidence that they will drift left. Republicans on the other must find nominees with strongly formed commitments to resist the current and that opens up such nominees to the charge of extremism and thus to filibusters.
If the Democrats are not rational from the perspective of getting a congenial court, they may have other reasons for being sanguine about triggering the nuclear option. First, the filibuster and subsequent nuclear option may help gin up their base in preparation for the 2018 election. But that is a long time away and citizens’ memories are short.
The more plausible reason is that Democrats are playing a longer game. Just as eliminating the filibuster for lower court judges and executive branch nominations paved the way for eliminating the filibuster for Supreme Court nominations, so eliminating the filibuster for Supreme Court nominations paves the way for eliminating the filibuster for legislation. And the Democratic party (although not all individual Democrats) would be advantaged by its elimination. As the recent debacle over repealing Obamacare showed, it is harder to eliminate a major government program than to create it, because beneficiaries and those who serve beneficiaries become a powerful interest group for the status quo. Progressivism can better grow the entitlement state by a majoritarian system with fewer legislative checks and balances.