Senate Democrats, led by Chuck Schumer, are poised to filibuster Judge Neil Gorsuch’s nomination to the Supreme Court. If successful, the filibuster will likely prompt Republicans to “go nuclear” and change the rules to permit confirmation of Supreme Court nominees by a simple majority vote. (Technically, the rules do not actually change but are “reinterpreted” by a new precedent.) This ugly melodrama is expected to play out over the coming week.
The proposed filibuster has little to do with the merits of the nomination. Gorsuch is an outstanding nominee who would be easily confirmed in less hyper-partisan times. He is exceptionally well qualified by intellect, character, experience and judicial temperament. The consensus among objective observers is that he performed well at his highly adversarial confirmation hearing. While quite conservative, Gorsuch is easily within the legal mainstream. Democrats are concerned that he won’t support policy results they favor when deciding cases. In this regard, a remarkable op-ed by Senator Kamala Harris condemns Gorsuch as someone who “has consistently valued narrow legalisms over real lives.” But the fundamental duty of a judge is, of course, to decide legal issues based on the relevant “legalisms” rather than preferred policy results. In short, there is no principled reason to oppose Gorsuch’s confirmation much less filibuster it.
In addition to being unprincipled, the proposed filibuster seems to go against Democrats’ long-term strategic interests. If it forces a rules change, they will have no leverage left and thereby make themselves irrelevant in the quite likely event that another Supreme Court vacancy arises during the next four years.[1] While confirming Gorsuch would only restore the ideological balance on the Court that existed prior to Scalia’s death, a future vacancy could well tee up a profound shift in the Court’s ideological balance. While Schumer evidently has no regard for Senate traditions, he may be hoping that at least a few Republican institutionalists do. It would take only three Republican no votes to defeat the rules change. However, Republicans are surely correct in surmising that if a nominee as worthy as Gorsuch can’t get a fair shake from Democrats, no future Trump nominee could either.[2] Thus, leaving the filibuster in place would probably guarantee no Supreme Court appointments for years to come. This obviously is not a viable alternative for Republicans, nor would it serve the public interest.
Given the above, my guess is that most Democrats (Schumer included) don’t honestly believe a Gorsuch filibuster is the right thing to do. Nevertheless, they apparently can’t resist the pressure to indulge the extreme anger on the left directed at all things Trump combined with more specific outrage and thirst for revenge over Republicans’ refusal to consider former President Obama’s nomination of Merrick Garland to fill the current vacancy.[3]
With respect to Trump, Schumer and his Democratic colleagues have done everything possible to placate the “resistance” by impeding his presidency and casting doubt on its legitimacy. An example in the present context is Schumer’s ludicrous argument that the Gorsuch nomination should be put on hold as long as the “big gray cloud of an FBI investigation hangs over the presidency.” For sheer disingenuous nonsense, this rivals Mitch McConnell’s contention that the Senate should not consider Supreme Court nominations made in the last year of a president’s term.
Outrage over Republicans’ refusal to take up the Garland nomination is more understandable. It is widely claimed that the Supreme Court seat now destined for Gorsuch was “stolen” from Garland, who is the only rightful heir to it. True, McConnell’s stonewalling of Garland was outrageous and sank politicization of the judicial confirmation process to a new low. Taking Garland’s mistreatment out on Gorsuch might satisfy some primal urge, but it is unworthy of our elected leaders. Former First Lady Michelle Obama said just last year that the Democratic motto should be “when they go low we go high.” Apparently today’s Democratic mantra is “when they go low we go lower.” Anyway, the outrage over Garland is overplayed for several specific reasons.
For one thing, the argument before the election was that Garland deserved a hearing and a vote, not that he was entitled to confirmation. Thus, the Supreme Court seat itself was never “stolen” from him. For another thing, it’s clear from the Democrats’ own words that, had the situation been reversed, a Democratic-controlled Senate would have refused to confirm a Republican president’s nominee to the Court in the final year of his term. The Democrats probably would have acted with more subtlety than McConnell by staging a hearing consisting of the usual political theater and then voting the nominee down. But the end result would be the same.
The Democrats’ tactics at Gorsuch’s confirmation hearing showcase this approach. Clearly they did not approach the hearing with open minds. Their main line of attack was asking Gorsuch questions designed to probe how he would rule in future cases–questions they knew he could not ethically answer–and then accusing him of evasiveness for not answering them.[4] A second line of attack was sheer demagoguery. They asserted that Gorsuch’s opinions in past cases demonstrated overwhelming favoritism for corporate interests over the “little guy” but completely disregarded the legal merits of the cases. Most notably, in one specific example they repeatedly highlighted, the so-called “frozen trucker” case, Gorsuch’s reading of the applicable law was clearly correct.
Proponents of the “stolen seat” argument largely ignore one other major problem: it’s doubtful that Garland’s nomination would have survived even if Hillary Clinton had won. If elected, Clinton probably would have made her own choice, one she could count on to satisfy her promised “bunch of [liberal] litmus tests” for Supreme Court nominees. During the campaign, she avoided any commitment to stick with Garland and even hinted that she would choose someone else. Moreover, leftist activists were never enthusiastic about Garland; they wanted someone younger, more reliably liberal, and probably not a white male. Certainly many of the activists now bemoaning Garland’s mistreatment would have pressured Clinton to pick someone else. They may even have welcomed McConnell’s stonewalling of Garland, confident that Clinton would win and replace him. No doubt their only genuine regret over McConnell’s tactic is not what he did but that, much to everyone’s surprise, it actually worked.
In any event, both parties have engaged in so much chicanery and hypocrisy over judicial nominees of late that their claims of outrage have by now lost all credibility. Virtually nothing said by either side can be taken at face value. It’s hard to believe that not long ago the Senate was able to confirm by overwhelming bipartisan majorities justices as ideologically diverse as Scalia and Ginsburg.
These are sad times for our democracy. Democrats and Republicans share the blame for the current race to the bottom on judicial confirmations. Who knows where it will end. The only sure thing is that with each new political abuse by one party and response in kind by the other, the Senate comes a step closer to dragging down with it the last branch of the Federal Government that still remains largely functional.
[1] Based on the Senate math for the 2018 mid-term elections (25 Democratic seats on the line versus only nine for Republicans), it is all but certain that Republicans will retain their Senate majority through 2020.
[2] Indeed, Schumer suggested even before the Gorsuch nomination that he was unlikely to support any Trump nominee to the Court.
[3] Interestingly, it seems that the fight against Gorsuch is being orchestrated by relatively small (albeit powerful) factions on the left and does not reflect a large grass-roots movement. According to polls, the effort to defeat Gorsuch is not resonating much with the public at large, including Democrats.
[4] All previous Supreme Court nominees for decades have steadfastly refused to answer such questions under a well-established and eminently sound principle known as the Ginsburg rule.