If you’re worried that some Senate Democrats might go weak-kneed on the Supreme Court, you’re not alone.
Donald Trump did a smart thing. Mark that down. I don’t say it often. In nominating Colorado’s own Neil Gorsuch, he went as far right as he could (a Scalia without a mean streak, we’re told) without getting too far into the culture-war weeds (OK, there is the Hobby Lobby decision).
But what everyone needs to understand, this is not about Gorsuch, who is apparently very smart and a really nice guy and about whom even David Lane has warm things to say. It’s not about Gorsuch any more than the Republicans’ decision to reject/ignore Merrick Garland — smart, nice and probably also looked on well by David Lane — was about Merrick Garland.
There are at least three reasons why Democrats need to fight to the end on Gorsuch.
One is that Republicans stole this seat, which would have given liberals a majority on the court for the first time in many years. That matters. Mitch McConnell used the pretext—that’s all it was, pretext—that the vacancy came too late in the Obama presidency to warrant a vote. Or maybe you’ve forgotten those GOP senators who said during the campaign that they would refuse to confirm any Hillary Clinton Supreme Court nomination — no matter how early in her presidency — back when they thought, as everyone thought, that Trump couldn’t possibly win. This wasn’t about timing. There’s no 24-second clock in politics. It was about who controls the court, and Gorsuch, just 49, is a very conservative jurist who would be on the court for the next 30 years or so.
Republicans played the hardest kind of hardball on Garland — and won. Going all in against Gorsuch wouldn’t be about vengeance, or even about justice. It’s about politics. If you’re not going to play the same game as the other team, you don’t deserve to win.
Two, Donald Trump. There can be no normalization of the Trump presidency. Republicans spent eight years winkingly questioning Barack Obama’s legitimacy (I’m winking at you, Mike Coffman) and then nominated as Obama’s replacement the leader of the birther movement. I’m not arguing that Trump wasn’t legitimately elected, even if he lost the popular vote by nearly 3 million. You can blame the Russians or Wikileaks or James Comey or you can blame the Electoral College. It doesn’t matter. What does matter, and what I’m arguing, is that Trump’s presidency is a danger to the country and to the world and that to pretend otherwise is to be a part of that danger.
If there’s anything politicians do work hard to understand, it’s what their constituents want. If Democrats are taking to the streets, they won’t stand for their, uh, leaders to do less. If Democratic leaders see the anti-Trump protests as a countermovement, and want the momentum of that movement to carry over until at least 2018, they need to take the lead. Taking the lead means taking the fight to Gorsuch in what will be the most public battle of the early Trump era.
There may be some risk here, but not that much. Even for Michael Bennet, who will certainly feel pressured to support the hometown guy, the risk is not that great. What did it cost Republicans to disregard Garland? And if the fight is actually a referendum on Trump, and it’s nothing less, Democrats can be thankful that Trump has spent every day of his presidency proving their point that he’s not up to the job.
There are the big things — like the disaster that was the rollout of the refugee ban. It was not only un-American and and probably, at least in parts, illegal, it was apparently a Steven Bannon production, put together in secret without Trump consulting even key members of his own team. So, while that was done in secret, everything else Trump does in the Oval Office — see: troubling phone calls to foreign leaders, punctuated by Trump bragging about the size of his inauguration crowd — are immediately leaked by staff who want either to embarrass him or to warn the public about what is happening behind closed doors.
I mean, there’s the latest about him hanging up on the Australian prime minister and then, when the contents of the call were leaked, Trump tweeting (of course) about this snit over refugees (what else?), saying he didn’t want to be hostage to a “dumb deal” that would bring dangerous “illegal immigrants” to America. Does Trump not know the difference between refugees and illegal immigrants? If he’s confused, maybe he could ask his good friend Frederick Douglass, who has done amazing things.
Three, and this may be the key point. Democrats can only stop Gorsuch by filibustering the nomination, and McConnell could go nuclear — as Trump has already advised — and change Senate rules to end the Supreme Court filibuster, meaning the Democrats lose anyway. It’s a real concern, and it’s not. For those not up on their filibuster-rules history, Harry Reid killed the filibuster on federal court appointments in 2013, meaning a judge needed only 51 votes to be confirmed. But the Supreme Court nominations were left untouched. The Democrats have 48 senators (including two independents), meaning they can successfully filibuster Gorsuch if they hang together. Unless McConnell drops the big one.
The question for some Democrats is whether this is the right time to make this fight. I’ve seen very good arguments that if Gorsuch goes down, Trump would almost certainly nominate someone worse. But they’re missing the larger point, which I’ve also seen: Once the nuclear option is under discussion, the game is already lost. It’s not a matter of whether McConnell will use it, it’s a matter of when.
And for Democrats, it’s not whether they win or lose — they don’t have the numbers to win — it’s how they play the game. And the only way to play the game right now is to go all in.
Photo by Elvert Barnes via Flickr: Creative Commons