The Republican leadership has made it clear that Gorsuch is getting confirmed this week one way or another. The issue the Democrats face is whether or not to force the GOP to use the "nuclear option" and eliminate the filibuster for Supreme Court nominees. Let's look at the Democrats option. First and foremost, their best option is to use the threat of a filibuster to extract some concession of future nominees in exchange for voting for cloture. Considering the current environment of partisanship, that seems like a very unlikely outcome. If that is not an option, then what do the Democrats gain or lose by forcing the Republicans hand?
Before we examine further, let's make one thing clear. Unless the current environment changes drastically, the filibuster is as good as gone. There is no "preserving" it for future use. Either party will invoke the "nuclear option" if needed to pass a nominee of their party's choosing. There is nothing to gain for the Democrats to "preserve" the filibuster for any potential next pick of Trump so long as they remain the minority. So, in that sense, they might as well force the issue now and score some political points with their base, right?
Well, not so fast. First, does the base really need any more rallying right now? Next, we can actually think of one scenario where the maintaining the filibuster could help the Democrats and it is not that far fetched. If the Democrats were to regain the Senate lead by the thinnest of margins during a Trump or Pence presidency, the filibuster could become critical in blocking a future nominee. Why you may ask would that matter if the Democrats had the majority? Here's why. There have already been 3 Democratic Senators to publicly state their support for Gorsuch. It's certainly not unusual for Senators to give a lot of leeway to a President's choice and certainly Democratic Senators from red states face more pressure. If the current opening hadn't been stolen from President Obama, then no doubt Gorsuch would sail through a nomination process rather easily. So, imagine a scenario of a vacancy opening in 2019 with a Republican president and a thin Democratic majority (51-49) in the Senate. A nominee could squeak through with only one Democratic defection if their was a full Senate vote. If the filibuster remained, however, the Democratic led Senate could more easily prevent such a nomination from ever coming to a vote.
Thinking as pragmatically as possible from the Democratic point of view, we think they should preserve the filibuster and work like mad to win back the Senate. Then they will control whether or not the filibuster remains in place for any future nominees. One thing that has been made clear these past few years is that total power in the Senate will reside with the majority party. Democrats need to think long and hard about the consequences of sacrificing the filibuster for a hollow victory now.