Littwin: It’s not about Gorsuch, but about whether Democrats have a spine

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


  1. The “nuclear option” for Supreme Court justices could well be a bigger lift than expected. There are a few Republican Senators who respect the tradition and are wary of eliminating the rule that protects minority points of view.

    Whether they are motivated enough to maintain the filibuster for nominees is a strategic decision I’ve not seen very much coverage of.

  2. I just would like to see some real live consequences for the appalling way Republicans treated Obama and Garland. The hypocrisy is simply jaw dropping.

  3. Clown car offering expedited passport delivery service.

    “Hiding news that doesn’t fit an ideological or a partisan agenda is perhaps the worst form of media bias. And it’s one more reason the public holds the press is such low esteem.” – Investor’s Business Daily

    “He can’t get attention without being outrageous. And the more outrageous he is, the more he turns off voters, particularly female voters, and even, if the polls are right, Republican and Republican-leaning women.” – Mike Littwin, August 2016

    “Look, everyone knows there will never be a President Trump.” – Mike Littwin, July 2015

    What do you call someone who is quick to point out contradictions in the views of others but ignores his own?

    Answer: Mike Littwin.

    Here’s what Mr. Littwin described the Senate filibuster in 2013:

    “If the (Senate) filibuster is gone — or mostly gone — that’s a good thing. It’s a good thing if it’s bad for Republicans. It’s a good thing if it’s bad for Democrats. Either way, it’s still good for good government.

    But the filibuster has an ugly history, made mostly by Southern Democrats using it to hold back anti-lynching laws and other civil rights action.

    And now instead of protecting the rights of minority opinion in the Senate — a good and decent idea — it’s routinely abused in order to upend the whole concept of majority rule, which, if I remember correctly, is sort of the basis of democracy.”

    So guess what action Mr. Littwin is now recommending Senate Democrats take on President Trump’s Supreme Court nominee Neil Gorsuch? You guessed it: filibuster.

    You can’t make this stuff up!!

    Then, after recommending a filibuster, Mr. Littwin, admits it’s a fight Senate Democrats can’t win.

    So why should Senate Democrats take on this Littwin-approved-can’t-win approach? Because Mr. Littwin believes President Trump “is a danger to the country and to the world and that to pretend otherwise is to be a part of that danger.“

    Sounds like he’s selling fear.

    Chicken Little ain’t got nothing on Mr. Littwin. His columns are already at DEFCON 1 which is going to be a very challenging level of hysteria to sustain for the next eight years unless he plans on using an improvised rating system (e.g. The Sky is Falling (TSIF) 1 through 10).

    On the plus side Mr. Littwin’s columns should get him VIP seating at the Oscars and there’s even more good news: according to Mr. Littwin, President Trump has already caused NPR to lose a listener.

    It’s easy to imagine Mr. Littwin walking the 16th street mall wearing a “The end is near” sandwich board screaming “Repent!” at unsuspecting passersby.. He’s already looks the part.

    Mr. Littwin dislikes politicians who fail to fulfill campaign promises or those who hide their true agenda. Apparently—-and somewhat ironically—-he also appears to dislike politicians like President Trump who do fulfill their campaign promises and don’t hide their true agenda.

    This from Chris Cillizza:

    “Donald Trump is who we thought he was.

    The 45th president campaigned as a radical break from both politics and policy as usual in Washington, promising to restore strength to the White House and the country while ignoring all tradition and political correctness.

    He spent the first week of his presidency doing just that — beginning with an executive order triggering the U.S.’s withdrawal from the Trans-Pacific Partnership, continuing through a midweek executive order to begin the process of building a wall along our southern border and culminating Friday with Trump’s executive order temporarily halting refugees from entering the country and instituting a full entrance ban on visitors from seven predominantly Muslim countries.”

    Or this from Nicole Russell:

    “Just about two weeks into his presidency, Donald Trump has already surprised Democrats and Republicans alike by doing one simple thing: Following through on his campaign promises. It is enraging Democrats and shocking Republicans. The only group not surprised? The “silent majority” who voted for him.”

    That’s why Mr. Littwin’s faux outrage over President Trump is so, well, outrageous. President Trump told voters what he would do if elected and he’s doing just that. Had President Trump not followed through on his campaign promises Mr. Littwin would have criticized him for that, too. Either way Mr. Littwin would be on tilt.

    According to Mr. Littwin, “The most cited column of the day from the Trump resistance is from David Brooks” and, true to form, Mr. Littwin ignores much of what Mr. Brooks says about the media. For example: “(Republican members of Congress) certainly don’t want to be seen siding with the inflamed progressives or the hyperventilating media.” And no one is hyperventilating more than Mr. Littwin.

    It’s interesting to note that Mr. Littwin still seems to take comfort in the words of Barack Obama whose opinions, at this juncture, carry no more weight than David Brooks or even Mr. Littwin. I guess Mr. Littwin must still have Barack Obama in his fantasy White House league.


    “In eight years of lickspittle coverups, the Times never called Obama dishonest, let alone a liar. But they were enchanted by what books he read and how many almonds he ate each night.
    But all Republicans, and Trump especially, start out by being treated like dirt, and it’s downhill from there. Other outlets raced to echo the Times “liar” charge and made much ado about other chaff, including press secretary Sean Spicer’s complaints about a “negative” drumbeat from the press.” – New York Post

    As the (Obama) administration’s popularity began tumbling early into its first year, the Obama White House declared war on Fox News. The White House director of communications, Anita Dunn, warned they would henceforth treat Fox News “like an opponent,” insisting, “we don’t need to pretend that this is the way that legitimate news organizations behave.”

    The Obama administration made good on that threat. Soon thereafter, the administration sought to deny Fox News’ participation in executive branch news-making events –which only failed after other networks admirably refused to participate if Fox News were excluded.

    When Fox News’s State Department correspondent, James Rosen, reported accurate information about North Korea leaked by a member of the Obama State Department, Eric Holder ordered his movements to be tracked, his phone records seized, and went “judge shopping” until he found one willing to grant such a warrant without telling Rosen himself. Holder even told Google to not notify Rosen that the government was monitoring his email.

    “To treat a reporter as a criminal for doing his job — seeking out information the government doesn’t want made public — deprives Americans of the First Amendment freedom on which all other constitutional rights are based,”the Washington Post wrote at the time.” –

    November 08, 2016
    “’Cause I don’t have no use
    For what you loosely call the truth” – Tina Turner

    Greenlight a Vet

    Folds of Honor

    Special Operations Warriors Foundation

    Veterans Day – November 10, 2017

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