How should Democrats respond to Gorsuch
February 1, 2017 1 Comment
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.
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.