In nominating Neil Gorsuch to the supreme court, Donald Trump just gave Senate Republicans exactly what they’ve long hoped for in filling Antonin Scalia’s vacant seat – and Democrats should do everything in their power to stop it.
It’s not that Gorsuch’s record is significantly more problematic than that of anyone else on Trump’s shortlist (he is, in many ways, merely Scalia’s ideological twin). It’s that Scalia’s successor should have rightfully been Obama’s to choose, and Democrats should return the favor by pushing Republicans to the legal limit, including making Republicans eliminate the filibuster on supreme court nominations.
Senate Republicans shamelessly played out the clock on the president’s dwindling tenure. After vowing to filibuster anyone Obama picked, they lived up to their word in refusing to hold a single confirmation hearing even for his eventual highly moderate selection of Merrick Garland. It was the perfect cherry atop an administration marked by Republican intransigence and opposition to practically every policy proposal put forward by the president.
Now the Trump administration, with its noted penchant for “alternative facts” is looking to rewrite recent history once more.
Trump spokesman Sean Spicer told reporters Monday that, before Senate Democrats “even heard who this individual is, you’ve got some of them saying, ‘Absolutely no.’ I mean, that just shows you that it’s all about politics, it’s not about qualification.”
And Trump, in a primetime press conference Tuesday scheduled for maximum drama, redoubled the point, calling Gorsuch’s qualifications “beyond dispute”, and adding: “I only hope that Democrats and Republicans can come together for once for the good of the country.”
To pin the partisan standoff that Republicans created around this vacancy on Democrats, as Spicer and Trump have been quick to do, isn’t just ironic, it’s deeply disingenuous. But it was Ted Cruz, perhaps, who deserves the prize for such things.
Speaking on air shortly after Trump’s presser, Cruz disparaged Democrats for their alleged “unprecedented partisan obstruction”. This from the man who led government shutdowns and built his defining career moments around the political polarization of Obamacare.
Already Democrats have signaled they will fight the nomination with a filibuster. Moments after Trump’s announcement, Senate minority leader Chuck Schumer said in a statement “the Senate must insist upon 60-votes for any Supreme Court nominee, a bar that was met by each of President Obama’s nominees.”
Yet he also, notably, made his objection about Gorsuch’s record, adding, “Gorsuch has repeatedly sided with corporations over working people, demonstrated a hostility toward women’s rights, and most troubling, hewed to an ideological approach to jurisprudence that makes me skeptical that he can be a strong, independent Justice on the Court.”
Gorsuch’s record is surely as objectionable to any good Democrat as Scalia’s textualist approach to interpreting the constitution ever was. But in fighting Gorsuch, Democrats have a chance to highlight more than that.
They have a chance to shed light on the fact that not only have Republicans successfully used gerrymandering and voter ID laws to skew electoral outcomes in their favor – they’ve also used every partisan trick in the book to get one more of their own in on the court that’s supposed to stand above partisan warfare.
Trump has already urged Senate majority leader Mitch McConnell to do away with the filibuster if Democrats mount a sustained resistance to his pick. But McConnell so far, has signaled some resistance to doing so, telling Politico, “that’s not a presidential decision. That’s a Senate decision,” and suggesting Democrats should refrain from even requiring 60 votes.
But Schumer is right to require them, and what’s more, his fellow Democrat’s should hold the line.
The practical objection to such a move is that Democrats risk blowing ammunition they might save for a future battle. As it stands four of the court’s nine members lean liberal, and three lean conservative, with Justice Anthony Kennedy typically representing the “swing vote”.
The addition of Gorsuch is unlikely to tip the balance of the court, the logic goes, given that he looks to be an almost perfect ideological replacement for the late conservative stalwart Scalia. But the notion that Democrats should hold their fire in case Trump has the opportunity to fill another, more pivotal, seat down the road is naive given recent history.
It’s not an inconceivable or even unlikely scenario that Trump will have such an opportunity. But Democrats would be fools to stand down now in hopes that Republicans, admiring their magnanimity and bipartisan spirit would somehow reward them at some unspecified future date.
Caving to Trump’s interests without a fight would take a wind out of the sails of the nascent resistance movement rocking our country. And if there’s one thing we’ve learned under Obama’s tenure and over the course of Hillary Clinton’s campaign, it’s that, at least in this political climate, playing nice and hoping you’ll be rewarded down the road is a fool’s errand.