Fair and Unbalanced
Littwin: Democrats want a fight on Gorsuch, but first they have to lay a glove on him
Let’s call it Mr. Gorsuch goes to Washington. And in ordinary times, there would be no question how the movie ends. Jimmy Stewart gets the girl, golly-gee Neil Gorsuch gets the job and somehow mutton busting becomes a national craze.
But, as you know too well, these are not ordinary times. In ordinary times, John Hickenlooper wouldn’t be trying to give cover to Senate Democrats (see: Bennet, Michael) to delay or even derail the nomination of a fellow Coloradan. In ordinary times, revenge wouldn’t be the guiding principle in opposing a Supreme Court nominee.
In these times, Gorsuch has two substantial obstacles to overcome, and neither of them has anything to do with his very conservative record while judge on the 10th Circuit in Denver or even his improbable dissent in the case of the frozen trucker (more on that, and on the mutton, later).
The twin obstacles are Mitch McConnell and Donald Trump, in that order. And when Trump is your second-biggest problem, you know the first has to be huge.
It was McConnell, of course, who blocked Obama Supreme Court nominee Merrick Garland from getting so much as a hearing last year in his bid to replace the late Antonin Scalia. McConnell made the case, flimsy as it was, that since Barack Obama was in his last year of office — this was last March — that somehow time had run out on him and now it should be up to the people to decide.
You may remember that, for the people, it was a split decision. Hillary Clinton got more votes. Donald Trump got more electoral votes. And so the Merrick Garland gamble worked for McConnell, and Republican Sen. Lindsey Graham would say that he was relieved Trump nominated someone as qualified as Gorsuch. “Quite frankly,” Graham said, “I was worried about who he’d pick. Maybe someone on TV.” Graham got a knowing laugh.
Anyway, Democrats feel that the fifth liberal vote on the court was stolen from them, and, as Hickenlooper said of the GOP treatment of Garland, “actions, like elections, have consequences.”
“If someone commits an offense against you, generally, if there’s no consequence — if you just walk away and there’s no consequence — if you have another opportunity, you can be pretty much assured that he’ll do that same thing again,” Hickenlooper said at a press conference. For Hickenlooper, who didn’t take a personal stand on the vote, that’s the rough equivalent of calling on Democrats to man the barricades. And it offers Bennet a rationale for voting against the nomination.
And then there’s Trump. He followed Gorsuch’s gaffe-free day of testimony — in which the judge repeated his statement that he was “disheartened” by the criticisms, meaning Trump’s criticisms, of federal judges — by criticizing federal judges.
At a fundraiser, Trump said, “Somebody said I should not criticize judges. OK, I’ll criticize judges.” And then, knowing that the somebody was his Supreme Court nominee, went on to criticize the latest federal judge who had the nerve to question Trump’s judgment. That line, by the way, is now nearly as long as the buffet line at Mar-a-Lago.
As Trump embarrassments go, it was a minor one, unless you were Gorsuch, who must be shaking his head at the strange route he must take to get to the Supreme Court.
Otherwise, Democrats have little to work with. There’s no scandal. There are a few questionable cases, of course, including the for-profit-corporations-have-constitutionally-protected religious-rights-too Hobby Lobby case. There’s the frozen trucker who broke the rules by leaving his broken down trailer behind while driving away in freezing weather and was fired for trying to save his life. The rule said you can’t be fired for refusing to drive an unsafe truck, but can be fired for refusing to stay by your trailer. Gorsuch, who went literal, conceded how sorry he felt for the driver, but that the law was the law. Al Franken, who questioned him about it, said his life’s work had been identifying the “absurd,”and that he knew absurd when he saw it.
Gorsuch’s testimony got a little testy as the day dragged on and as Democrats hit him with tougher questions, but, in general, this was a case study in how not to say anything that can be used against you, now or forever, but to do it affably.
Much of the testimony from Gorsuch — a reliably conservative judge who would no doubt become a reliably conservative justice, a Scalia-style thinker but with a folksy disposition — was about how the law is everything to him, about how there are no Democratic judges or Republican judges, only judges, about how if Trump had asked him to vote to overturn Roe v. Wade, he would have walked out of the office. Gorsuch insisted he was an independent judge, and Democrats, who get another try today to get Gorsuch to say anything controversial, are still looking for anything that will stick.
The stakes are absurdly high in that Gorsuch, just 49, could be on the court for three or four decades. But to recap: Republicans have 52 Senate votes, Democrats and Democratic-leaning independents have 48. If Democrats filibuster, Republicans need eight Democrats to defect. If Democrats filibuster and there aren’t eight defectors, Republicans have to decide whether to eliminate the filibuster for Supreme Court nominees (as Harry Reid did in a similar situation for other federal judge nominations.)
If Democrats lose the filibuster, they wouldn’t have it to use if Trump gets the chance to replace one of the older liberal justices on the court. Worse, McConnell could conceivably end the filibuster altogether. Although I doubt seriously he’d do it, I don’t doubt that he’d threaten it. And while I’m generally anti-filibuster, I make one exception for any and all years in which Donald Trump is president.
The Democratic base wants a fight no matter what the stakes, and I’ve already written that, on most days, I believe that fighting spirit should be honored. But meanwhile, Michael Bennet is in a lose-lose situation. The Denver legal and business establishment wants him to vote for Gorsuch. The Democrats, if they filibuster, will need him to vote against. Bennet is not saying anything except that Gorsuch should get a fair hearing, which, he noted, was more than Garland received.
If Gorsuch makes it to the Supreme Court, he would be the second Coloradan. The legendary Whizzer White, Gorsuch’s idol, was the first and only. Much has been made of Gorsuch’s not-so-humble Western roots. The drinking game for Tuesday’s hearing was to raise up every time Gorsuch referred to Colorado — as in his story of his kids riding sheep, mutton busting, at the National Western Stock Show. But for Michael Bennet, each reference meant another pull at the Pepto Bismol bottle. It may be of little consolation to Bennet, but I’m guessing a lot of Democratic senators can relate.
Photo by James Bowe via Flickr:Creative Commons
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