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Why Democrats Should Oppose Neil Gorsuch Why Democrats Should Oppose Neil Gorsuch
(about 11 hours later)
It’s important to remember just how radical — and, yes, unprecedented — the Senate’s approach to the previous Supreme Court nominee was.It’s important to remember just how radical — and, yes, unprecedented — the Senate’s approach to the previous Supreme Court nominee was.
Republican leaders announced last March that they would not consider any nominee. They did so even though Barack Obama still had 10 months left in his term and even though other justices (including Anthony Kennedy) had been confirmed in a president’s final year.Republican leaders announced last March that they would not consider any nominee. They did so even though Barack Obama still had 10 months left in his term and even though other justices (including Anthony Kennedy) had been confirmed in a president’s final year.
The refusal was a raw power grab. Coupled with Republican hints that no Hillary Clinton nominee would be confirmed either, it was a fundamental changing of the rules: Only a party that controlled both the White House and the Senate would now be able to assume it could fill a Supreme Court vacancy.The refusal was a raw power grab. Coupled with Republican hints that no Hillary Clinton nominee would be confirmed either, it was a fundamental changing of the rules: Only a party that controlled both the White House and the Senate would now be able to assume it could fill a Supreme Court vacancy.
The change is terribly damaging for the country’s political system. It impedes the smooth functioning of the court and makes it a much more partisan institution.The change is terribly damaging for the country’s political system. It impedes the smooth functioning of the court and makes it a much more partisan institution.
Of course, the strategy also worked, and the flip from an Obama justice to a Trump justice will likely be the deciding factor in many of the most important cases in coming years.Of course, the strategy also worked, and the flip from an Obama justice to a Trump justice will likely be the deciding factor in many of the most important cases in coming years.
So what can Democrats do?So what can Democrats do?
First, they need to make sure that the stolen Supreme Court seat remains at the top of the public’s consciousness. When people hear the name “Neil Gorsuch,” as qualified as he may be, they should associate him with a constitutionally damaging power grab.First, they need to make sure that the stolen Supreme Court seat remains at the top of the public’s consciousness. When people hear the name “Neil Gorsuch,” as qualified as he may be, they should associate him with a constitutionally damaging power grab.
Second, Democrats should not weigh this nomination the same way that they’ve weighed previous ones. This one is different. The presumption should be that Gorsuch does not deserve confirmation, because the process that led to his nomination was illegitimate.Second, Democrats should not weigh this nomination the same way that they’ve weighed previous ones. This one is different. The presumption should be that Gorsuch does not deserve confirmation, because the process that led to his nomination was illegitimate.
Republicans still control the Senate, which means they can confirm Gorsuch if they decide to remove the filibuster during the nominating process. And so Democrats may not have the power to block the nomination.Republicans still control the Senate, which means they can confirm Gorsuch if they decide to remove the filibuster during the nominating process. And so Democrats may not have the power to block the nomination.
But the only reason they should vote for Gorsuch is if they decide it’s in their own political interest to do so. They may decide, for example, that any filibuster would be doomed to fail now — but might succeed if another justice leaves the court during Trump’s presidency. Or they may decide that an all-out fight would encourage Kennedy to retire, as the longtime Democrat Ronald Klain has warned. Either way, such tactical considerations are the ones that should guide Democrats.But the only reason they should vote for Gorsuch is if they decide it’s in their own political interest to do so. They may decide, for example, that any filibuster would be doomed to fail now — but might succeed if another justice leaves the court during Trump’s presidency. Or they may decide that an all-out fight would encourage Kennedy to retire, as the longtime Democrat Ronald Klain has warned. Either way, such tactical considerations are the ones that should guide Democrats.
Finally, the Democratic Party should begin planning its long-term strategy for the court, and that strategy needs to revolve around last year’s events. One option, for example, would be a plan first to deprive a Republican president of one nominee in coming years and second to offer a truce with Republicans.Finally, the Democratic Party should begin planning its long-term strategy for the court, and that strategy needs to revolve around last year’s events. One option, for example, would be a plan first to deprive a Republican president of one nominee in coming years and second to offer a truce with Republicans.
I understand that all of these options sound aggressive and partisan. But Democrats simply cannot play by the old set of rules now that the Republicans are playing by a new one. The only thing worse than the system that the Republicans have created is a system in which one political party volunteers to be bullied. I understand that all of these options sound aggressive and partisan, and it makes me deeply uncomfortable to make such an argument. But Democrats simply cannot play by the old set of rules now that the Republicans are playing by a new one. The only thing worse than the system that the Republicans have created is a system in which one political party volunteers to be bullied.