Wednesday, February 1, 2017

Supreme Court Nominee Neil Gorsuch: Should Democrats Fight or Roll Over?

President Donald Trump, and it still feels funny writing that, nominated Neil M. Gorsuch, Appeals court judge from the 10th Circuit, to serve on the Supreme Court. Gorsuch would replace the late Antonin Scalia and restore the Supreme Court to its full roster of nine justices. Gorsuch, is by the estimation of most of those who work or teach in the legal field, or observe it closely, quite qualified. He has the requisite Ivy League education, pedigree and connections, clerkships, experience and judicial decisions that many would agree that you want in someone who is being considered to serve on the Supreme Court. Most people on the conservative side are predictably thrilled. They see Gorsuch as someone with the intellectual chops of Scalia and the same dedication to conservative outcomes. Of course they would claim that Gorsuch is only correctly applying the law as written. Even some liberal legal scholars are singing the praises of Gorsuch, stating that he's beyond reproach and actually someone even people who may not politically agree with Trump should nonetheless support.

Just as predictably some people on the left are saying that Gorsuch is a very bad choice. And they can point to opinions or statements which would certainly back up their stance. In some respects this is all neither here nor there. Trump was not going to nominate a liberal justice. The only concern that many conservatives have is that Gorsuch doesn't turn into a David Souter-i.e. someone nominated and supported by conservatives who reveals himself on the bench to be a less than reliable conservative vote. Most conservatives seem to think that that won't be the case. Under normal conditions it would probably not be worth having a fight over Gorsuch, especially since he's replacing a conservative voice on the Supreme Court, not a liberal one.

But these aren't normal times. Scalia died in February of 2016. Senate Republicans refused to consider even voting yea or nay for Obama's replacement Merrick Garland. This was unprecedented and abnormal. But the Republicans got away with it. They kept control of the Senate and House and won the Presidency. The Senate Republicans did this to humiliate former President Obama and prevent a liberal justice from replacing a conservative one. In fact the Republicans were so giddy about punking the Democrats that some of them were even threatening to do the same thing to any of a President Clinton's Supreme Court nominees, if she had won the election. Now the shoe is on the other foot. There is still a filibuster for Supreme Court nominations. Some Democrats are eager to do just that to the Gorsuch nomination. They ultimately probably wouldn't be able to block the Gorsuch nomination because (a) there might be 8-9 Democratic Senators who wouldn't go along with that plan and (b) even if all the Democrats held firm on the filibuster the Republicans can by simple majority vote get rid of the filibuster. So this is at least in the short term a lose-lose situation for Democrats. Online and off, people I respect have made the argument that as bitter as the Garland situation was, what's done is done. By this line of reasoning the Democrats shouldn't filibuster because applying that tactic to someone as eminently qualified as Gorsuch will cause them to lose the filibuster. 

And actuary tables indicate that it's likely that the next two or three vacancies on the Supreme Court will be because of liberal justice deaths. So Democrats should keep the filibuster for when they really need it for some shambling conservative Lovecraftian horror. They can't win this fight now. They just can't. I agree that as the hoary saying goes, unless Gorsuch is caught in bed with a dead woman or live boy, he's going to be on the Supreme Court. But I don't think a fight about this is solely about Gorsuch or even just about Garland. It's about setting the stage for future fights. The Republicans have already shown remarkable unreasonableness. They won't stop doing that until it costs them a little more than it has. Fighting to stop Gorsuch is also about inspiring your base and showing that even in loss you're going to extract your pound of flesh. It's about raising the cost of being high-handed when you're in the majority. Sometimes, even when you're going to lose and know you''re going to lose, the fight is the point. Give them nothing but take from them everything. The Democrats have a reputation, deserved or not, for being weak, for going along to get along, for not standing up for themselves, for being too quick to seek compromise. If they intend to win the Presidency in 2020 or beyond, if they intend to win the House and Senate, Governor's houses, etc they need to shed this soft reputation. And that's why I think the Democrats should make the Republicans shut down the filibuster by the so-called nuclear option.  This is not just a Sonny Corleone/General George Pickett "let's get em all" mad charge without thinking. This is a very rational game theory idea of restoring normal decorum by showing the opposite side that there are limits to what bad behavior you're willing to tolerate. 

But I'm just an IT manager.

What's your take?

blog comments powered by Disqus