By the time you read this, it may be a done deal, since I forgot to write this last night. But I think it’s still an important statement to get out there.
The Republicans have made it very clear that they intend to confirm Neil Gorsuch to the Supreme Court, no matter what. So the Democrats have nothing to lose by opposing him, and nothing to gain by letting him through easily.
“But what about preserving the filibuster for future SCOTUS nominees?”
What about it? Do you really think that if the Democrats don’t filibuster Gorsuch, but filibuster a future nominee, the Republicans won’t just eliminate the filibuster at that point? What is going to change between now and then that suddenly the Republicans are going to be interested in consensus or compromise, after being uninterested in either since at least 2003?
And if the Democrats have control of the Senate by the time the next SCOTUS nomination is made, they can always restore the judicial filibuster if they want to.
No, this really isn’t about the judicial filibuster, and it’s only partly about Gorsuch. This is about how we’re going to run government (apparently: ever more poorly and more dictatorially), and this is about representing the people’s interests.
The judicial filibuster is a smokescreen for the real issue: the Republicans’ refusal to even attempt compromise or consensus any more. Over the past decade they have repeatedly voted against or blocked legislation that they themselves had initially proposed, rather than pass a bill that had bipartisan support. They have been perfectly willing to flout tradition and gut the rules that allow our government to function, in pursuit of power. And they are happy to do this with grand hypocrisy and not a trace of responsibility for their actions. McConnell spent most of a year gathering votes by vocally, publicly, and explicitly blocking a SCOTUS nominee. And now he is claiming that blocking a SCOTUS nominee is a new thing. In addition to his amnesia about most of 2016, he apparently was absent from his duties in the Senate for the 14 weeks during which Robert Bork was not confirmed.
After Bork’s rejection, the response was not to throw a temper tantrum and insist on changing the rules; it was to nominate someone else (who turned out to have some questionable history). But when that person withdrew, then the President nominated someone who had broad enough appeal to get a 97-0 confirmation (from mostly the same Senators). So, no, rejecting a SCOTUS nominee is not a new thing. The fact that they’re resorting to the filibuster is basically irrelevant—they’re using the tools the Senate rules give them to express that they feel this nomination is not appropriate.
What is new is refusing to even consider a SCOTUS nominee, and that’s on the Republicans’ heads. What is new is responding to the rejection of a SCOTUS nominee by insisting that the nominee may not be rejected.
Gorsuch is a Bad Choice
And let’s be clear, here: there are two good reasons to reject Gorsuch for the Supreme Court. Yes, the fact that Merrick Garland was never even considered is one of them. Even given that it the Republicans now have control of government, they should at least be attempting to nominate someone with bipartisan appeal. Obama chose Merrick Garland at least in part because he had bipartisan appeal—he was specifically proposed by Republicans as a perfect example of someone they felt should be on the Supreme Court. There are plenty of eminently qualified judges out there that wouldn’t have the Democrats (and their liberal supporters) up in arms if they were nominated to the Supreme Court. The Republicans didn’t have to choose a hardline conservative.
And they particularly didn’t have to choose a so-called “originalist”. They could’ve chosen a judge who is aware that significant elements of society and technology have changed in the last 230 years.
“Originalism” is just an excuse to reject change, and it’s not even a very good one. “Originalists” claim to revere the Constitution and its authors—until the Constitution or its authors say something they don’t like. They seem to think that the Constitution’s authors were divinely gifted with foresight that enabled them to anticipate every new technology and social change for all time, and thus craft their document to cover all possible eventualities. And then ignore the fact that it has been repeatedly amended, showing that it clearly wasn’t perfect to begin with. They claim to be able to read the minds of the Constitution’s authors, to interpret what was intended and fill in the inevitable gaps in its rules, but when we actually know what those authors intended (usually due to other writings), they ignore that if it doesn’t fit their notion. “Originalists” aren’t hewing to the actual intent of the original authors of the Constitution; they’re hewing to what they wish the original meaning of the Constitution had been, and rejecting any counter-evidence.
At best, “Originalists” are deluded. At worst, they are selectively re-interpreting the Constitution after the fact to support the conclusions they’ve already made, as Scalia did on far too many occasions. Perhaps Originalism could be a valid judicial philosophy—if one woefully out of touch with modern society—but it isn’t, as practiced by its self-proclaimed adherents.
How the Democrats Win While Losing
So, if Democrats have nothing to lose by [failing at] blocking Gorsuch, what do they have to gain?
- Enthusiasm from the electorate—the Democrats need to have people voting for them and not merely against the Republicans.
- Support from the populace.
- Demonstrating that they are not just going to roll over and let the Republicans do whatever they want to do.
- Showing that they believe in an ideal or a goal, even when it is difficult or impossible, rather than only “fighting for” things that don’t actually require a fight.
- Forcing the Republicans to actually follow through on their threats, and reap the consequences of their actions, rather than backing down and letting the Republicans get what they want with no consequences.
- Maybe, finally, convincing moderate voters that the Republicans aren’t standing on principle, as they claim, but engaging in a sort of nihilistic governance that is more about gaining power than actually doing anything productive with that power.
- If they handle this right, staking out something they believe in, and thus drawing a contrast with the purely-oppositional politics of the Republicans.
To do this, the Democrats need to couch this in terms of what they gain, of what positive things they are protecting, and not just in terms of who and what they are opposing. They are supporting reproductive rights. They are supporting LGBTQ rights. They are supporting an interpretation of the law that recognizes that our society and technology aren’t the same as they were 230 years ago. (Just look at the mess that is patent law right now: do you really want someone who is going to defer to a two-century-old document when trying to disentangle DRM and printer cartridge patents, or sort out library ebook rights?) They are supporting the notion that bullies shouldn’t get their way by refusing to do their job for a year and then being rewarded for it.
And above all, they are supporting the notion that if you can’t get at least 60 out of 100 Senators to support a judge nominee, that nominee is probably too extreme (too liberal or too conservative) to be on the Supreme Court. They are supporting the notion that the Senate has a role in our government, and the minority party has a role in our government, and the President doesn’t get to just do whatever they want—they have to convince Congress that it is a good idea.
So while I fear that the Democrats will suffer negative consequences for opposing Gorsuch—either due to their poor ability to explain why, or the Republicans talent, bolstered by the media, at blaming the Democrats for Republican actions (no, the Democrats aren’t “making” the Republicans abolish the judicial filibuster—they could choose to accept defeat and nominate someone else)—I’m sure that the Democrats will suffer negative consequences for not opposing him.