In an op ed submitted to Politico Magazine, Senate Minority Leader Chuck Schumer (D-N.Y.) promised that Democrats will filibuster the confirmation of Judge Neil Gorsuch, President Donald Trump's nominee for the Supreme Court seat vacated by the death of Justice Antonin Scalia in 2016. According to Schumer, this decision means that "Neil Gorsuch needs 60 votes," which means that he does not believe that Senate Majority Leader Mitch McConnell will use the so-called "nuclear option" and change Senate rules to eliminate judicial filibusters with a bare majority.
In explaining his reasoning for announcing a filibuster of Gorsuch, who was confirmed unanimously by the Senate to the United States Court of Appeals for the 10th Circuit in 2006, Schumer claimed that the "unprecedented strain" President Trump has placed on the Constitution during his brief presidency requires a Supreme Court justice who will act as a check on Trump's power. According to Schumer:
In a little more than two weeks, President Donald Trump has put an unprecedented strain on the Constitution. He’s unleashed a flurry of legally dubious executive orders, including his travel ban designed to keep people from seven majority-Muslim countries from entering our country. This violation of America’s laws — and values — has already been stayed by several courts. In response, President Trump has engaged in attacks on the independence of our nation’s judiciary. Just this weekend, he impugned the “so-called judge” who struck down the president’s travel ban.
These actions show a lack of respect for the separation of powers — and that’s why Senate Democrats will do everything we can to make sure that the next Supreme Court justice will be an independent check on an out-of-control executive.
Of course, much of Schumer's rhetoric might fairly be dismissed as pure partisan posturing, since Schumer failed to object to any of the numerous actions taken by former President Barack Obama that were ultimately struck down by a unanimous Supreme Court. In fact, Obama's executive actions were more frequently overturned by the Supreme Court — and more frequently unanimously overturned — than the actions of any other modern American president, by a significant margin. Schumer, who was then minority whip, did not even object to the Obama administration's breathtaking decision to make several recess appointments when the Senate was not in recess, a move that drew a stinging unanimous rebuke from the Supreme Court, in an opinion joined by both of Obama's own Supreme Court appointees.
Some red state Democrats such as Sen. Joe Manchin of West Virginia have already signaled that they lean toward confirming Gorsuch, but it is unclear at this point whether McConnell has the 60 votes he needs to avoid a potential "nuclear option" showdown. McConnell has voiced public hesitation about changing the rules of the Senate in response to an anti-Gorsuch filibuster, but if Schumer is able to hold the line, the political pressure on McConnell to use the "nuclear option" will be tremendous. President Trump has already called for McConnell to use it, and Republicans leery of a revolt from their base will no doubt strongly encourage McConnell to pull the trigger so as to avoid backlash from their constituents.
Schumer's declaration potentially sets up a showdown that could change the rules of the Senate forever, but it's too soon now to know how it will all play out.