How should Democrats respond to Gorsuch

I remain open-minded on the subject (because I’m liberal 🙂 ), but so far I’m most strongly convinced by what I posted from Chait yesterday and what I read from Seth Masket and Dave Leonhardt today.  I assume Seth will shortly write something longer than an  FB update, but for now:

With regards to the Gorsuch nomination, the bind for Senate Democrats is not just that they are being told to be the adults in the room and take a loss for the good of the institution. It’s that taking the loss won’t actually help the institution. It will signal not only that the GOP’s unprecedented obstruction on Garland last year is acceptable, but that’s it’s acceptable for just one party. This same thing will happen again.

If norms are important, their violations have to be punished.

And, Leonhardt:

It’s important to remember just how radical — and, yes, unprecedented — the Senate’s approach to the previous Supreme Court nominee was.

Republican leaders announced last March that they would not consider any nominee. They did so even though Barack Obama still had 10 months left in his term and even though other justices (including Anthony Kennedy) had been confirmed in a president’s final year.

The refusal was a raw power grab. Coupled with Republican hints that no Hillary Clinton nominee would be confirmed either, it was a fundamental changing of the rules: Only a party that controlled both the White House and the Senate would now be able to assume it could fill a Supreme Court vacancy.

The change is terribly damaging for the country’s political system. It impedes the smooth functioning of the court and makes it a much more partisan institution…

First, they need to make sure that the stolen Supreme Court seat remains at the top of the public’s consciousness. When people hear the name “Neil Gorsuch,” as qualified as he may be, they should associate him with a constitutionally damaging power grab.

Second, Democrats should not weigh this nomination the same way that they’ve weighed previous ones. This one is different. The presumption should be that Gorsuch does not deserve confirmation, because the process that led to his nomination was illegitimate.

Republicans still control the Senate, which means they can confirm Gorsuch if they decide to remove the filibuster during the nominating process. And so Democrats may not have the power to block the nomination.

But the only reason they should vote for Gorsuch is if they decide it’s in their own political interest to do so. They may decide, for example, that any filibuster would be doomed to fail now — but might succeed if another justice leaves the court during Trump’s presidency. Or they may decide that an all-out fight would encourage Kennedy to retire, as the longtime Democrat Ronald Klain has warned. Either way, such tactical considerations are the ones that should guide Democrats.

Finally, the Democratic Party should begin planning its long-term strategy for the court, and that strategy needs to revolve around last year’s events. One option, for example, would be a plan first to deprive a Republican president of one nominee in coming years and second to offer a truce with Republicans.

I understand that all of these options sound aggressive and partisan, and it makes me deeply uncomfortable to make such an argument. But Democrats simply cannot play by the old set of rules now that the Republicans are playing by a new one. The only thing worse than the system that the Republicans have created is a system in which one political party volunteers to be bullied.


The soul-selling gamble that paid off

Also worth mentioning that so many Republicans were willing to look past Trump’s transparent unfitness and unsuitability so that they could get a Scalia-like Supreme Court justice.  They got it.  They won.  They put our democratic system at the most risk it’s been in generations (since the Civil War?) for a Supreme Court justice.  Now, they can hope Trump doesn’t irrevocably erode our democracy (though, he’s already clearly making a serious attempt).

Chait on Democrats’ need to show a little spine and force the Republicans to end the filibuster:

Once Mitch McConnell blockaded Barack Obama’s last Supreme Court nomination, and then Donald Trump carried the Electoral College, the chance that Republicans would fill the vacancy rose to 100 percent. Trump chose a well-regarded conservative jurist in Neil Gorsuch, rewarding both McConnell’s decision to mount the blockade and the institutional Republican party’s decision to mostly support Trump. The only choice before Senate Democrats is whether to allow Republicans to claim their reward the easy way or the hard way. They should choose the hard way…

It was clear to some of us several years ago, and has become clear to almost everybody else since, that the rules of politics have changed completely. The old norms presumed that a president can fill a Supreme Court vacancy with a jurist of his own broad philosophical bent, and that the opposing party is only entitled to block a candidate they consider especially unqualified or extreme. (These norms allowed for bitter fights over individual candidates, like Robert Bork, without questioning a president’s right to nominate somebody qualified from his own team.) Those norms are gone. The new norm is that a president needs 50 Senate votes to fill a seat, or it will go unfilled.

It would be better for the health of American democracy to change to rules to something more stable. But pretending otherwise delays rather than hastens the day when some formal rule change comes about. In the meantime, Democrats have an extremely simple choice. They can make McConnell abolish the filibuster, or wait for the day when McConnell attacks them for doing it. It is McConnell, his extraordinary blockade tactic, who has functionally changed the rules of the game. He should be forced to do it in name.

And, I very much enjoyed Mark Joseph Stern’s take on Gorsuch:

Neil Gorsuch, Donald Trump’s Supreme Court nominee, is a brilliant, witty, handsome, eloquent, perfectly pedigreed judge. He is, to put it another way, an extraordinarily difficult jurist for Democrats to oppose.

Gorsuch, who currently serves on the U.S. Court of Appeals for the 10thCircuit, is difficult to object to on personal or jurisprudential grounds. Although he is a rock-ribbed conservative, he conveys his ideas fluently and courteously and is well-liked by his colleagues on the left and right. And though his rulings can be reactionary, he has never directly stated his opposition to hot-button legal issues like abortion and same-sex marriage. Democrats may argue that Gorsuch is an illegitimate justice in a stolen seat, but the judge himself will not fit easily into the role of a villain. Whatever extreme positions he may hold will be concealed by his humble, articulate demeanor. It seems overwhelmingly likely that Gorsuch will soon sit on the Supreme Court of the United States…

If confirmed, Gorsuch will restore the ideology of the Supreme Court to about where it was before Scalia died. He is vastly more conservative than Judge Merrick Garland, the Obama nominee whom Republicans blocked for nearly a year in the hope—now realized—that a Republican might appoint Scalia’s successor. The memory of this ghastly disregard of basic constitutional norms will hang over Gorsuch’s hearings and may even tarnish his legacy. His confirmation process will have the whiff of illegitimacy, which Democrats will attempt to use to keep him off the court. But this strategy seems destined to fail, because it is so difficult to explain what is objectionable about Gorsuch himself. Yes, he is conservative, but he is not a rank partisan like Justice Samuel Alito, or a flame-throwing culture warrior like Scalia. He is a judge’s judge. And he is, in all likelihood, our next Supreme Court justice. [emphasis mine]

So, basically, Scalia without being a jerk (and nobody what you thought of his legal mind, Scalia was a hell of a jerk).  So, we’re status quo ante of last January.  But, what happens next with any retirements likely portends a dramatic change.

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