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How Should Democrats Respond To The Gorsuch Nomination?

Trump Neil Gorsuch

President Trump’s nomination of Judge Neil Gorsuch to fill the seat made vacant by the death of Associate Justice Antonin Scalia just under a year ago has led many Democrats and others on the left to talk about how the should respond to the nomination of a seemingly well-qualified nominee for a seat that they feel was “stolen” from them. On the one hand, there are some on the left who think Senate Democrats should take a page from the Republican book and do whatever it takes to block Gorsuch’s nomination, including a filibuster that would prevent Republicans from bringing the nomination to a final vote without invoking the so-called “nuclear option” and eliminating the filibuster for Supreme Court nominees. Others argue that fighting the President’s effort to replace a conservative Justice with another conservative who will have little real impact on the ideological balance on the Court when it comes to high-profile controversial issues such as abortion, affirmative action, and abortion rights. Politico has assembled contributions from across the political spectrum in a symposium post,

One of the participants in that symposium is Dan Farber, a liberal-leaning law professor at the University of California at Berkeley, who has written extensively on issues involving constitutional and environmental law, argues that Democrats should hold their fire to some degree when it comes to the nomination of Judge John Gorsuch to the Supreme Court:

[H]e’s a Trump nominee, and he’s nominated for a seat that should properly belong to Garland. So why not filibuster and try to block the nomination? One reason is that the Republicans were wrong in what they did to Garland, and the Democrats were right that this kind of behavior is damaging to the Supreme Court as an institution. But there are two other reasons. First, blocking a nominee for a year when you have a majority of the Senate is one thing; blocking any appointment for four years when you’re in the minority is much less feasible (and more damaging to the court).

Second, the key thing about Gorsuch from my point of view is that he’s principled — and he seems to have enough backbone to stand up to Trump. We could use that on the court. The fact that Gorsuch has spoken against judicial deference to the executive branch in matters of statutory interpretation makes it more likely that he won’t rubberstamp Trump’s actions.

I’m not saying that the Democrats should give Gorsuch a quick vote. For one thing, we will know a lot more about him as time goes on. Nor am I saying that they should vote for him. It may be entirely reasonable to vote against him as a protest against what the GOP did to the last nominee. It is also fair to make sure the American people know the views of Trump’s nominees. But in the end, I don’t think Democrats should try to block the appointment unless something unexpected comes up.

It strikes me that Farber raises several valid points that Democrats in the Senate ought to consider as the nomination moves forward.

First of all, as he notes, blocking a nomination when you are in the minority is not exactly an easy task even taking the filibuster into account. We don’t know if Democrats would be able to maintain enough unity to prevent the Senate from invoking cloture and proceeding to a final vote, at which point confirmation would be inevitable given the Republican majority. Already there have been hints that some Democrats may not be willing to stick with the caucus on a cloture vote, most notably West Virginia Senator Joe Manchin, who said in the immediate aftermath of Gorsuch’s nomination that he hopes his fellow Democrats should give Gorsuch a fair chance rather than seeking revenge for what Republicans did when they refused to hold hearings or in many cases even meet with Merrick Garland after President Obama selected him. Additionally, as I’ve noted elsewhere, other Democrats up for re-election in 2018 in traditionally Republican states, as well as states that Trump won in November, are likely to feel at least some pressure to tread carefully when it comes to this nomination. This doesn’t mean that they’ll ultimately feel obligated to vote in favor of Gorsuch in a final floor vote, but it may cause them to break with the caucus on the cloture vote so that the nomination can at least proceed to the floor for a final up-or-down vote.

Second, even if they are able to maintain unity and prevent Republicans from getting the sixty votes needed to block Gorsuch’s nomination, the Democrats could not permanently block a final vote on the nomination. As I’ve discussed before, Senate Republicans could invoke the nuclear option and remove the ability of a minority to block consideration of a Supreme Court nominee. While there has been some indication that Republicans may currently lack the majority they would need to change the rules, it’s possible that could change if Democrats actually do attempt to filibuster Gorsuch even after the confirmation process fails to reveal anything about Gorsuch that would justify blocking him. Additionally, Republicans could use other Senate rules to force a final vote on Gorsuch’s nomination notwithstanding the lack of sixty votes to invoke cloture or a majority sufficient to eliminate the filibuster. Under the so-called “two-speech rule” which prevents any one Senator from speaking on an issue more than twice during the course of a “legislative day.” A “legislative day” is basically a day that the Senate is in session but it is not dependent on any calendar but on when the Senate actually adjourns for “the day,” which is something that has to be specifically asked for and voted on by the Senate. In the past, this quirk in the rules has been used to extend a “legislative day” for as long as a week or more for procedural reasons. In fact, according to research, the rule has been used to extend the “legislative day” for even longer in the past. In 1922 for example, there was a “legislative day” that lasted for 105 actual days and in 1980 such a “legislative day” began when a new Senate convened on January 3rd and didn’t end until June 12th. In combination with other Senate rules, Senate Republicans could use the “two-speech rule” to either require Democrats to get to the point where every Democrat who wants to speak about the Gorsuch nomination has done so, or to concede that they won’t be able to block the nomination and allow the nomination to proceed to a final vote.

Finally, as I’ve noted before, this may not be the nomination that Democrats want to go full bore on in terms of fighting to block a nomination or forcing President Trump to pick an allegedly more moderate nominee who would likely still generally side with the Court’s conservatives, which is effectively similar to what President Obama did when he selected Merrick Garland last year. Putting Neil Gorsuch on the high Court to replace Justice Scalia is not going to have a serious impact on the ideological balance on the Court. The cases where the court ended up in a 5-4 majority on either side of an issue when Scalia was alive will return to being 5-4 decisions going forward. There may be some differences in future cases between how Gorsuch votes and how Scalia would have likely voted, but they are likely to be minimal at best, and in some cases at least they could lead to results that Democrats might be pleased with at least for a time. For example, there’s at least some evidence from what we’ve learned about his record to date that Gorsuch is far more skeptical about efforts by the Executive Branch to exercise unilateral power than Scalia proved to be during his time on Court. If that’s the case, he could end up being part of a Court majority that is eventually instrumental in pushing back against future power grabs by the Trump Administration. Additionally, he’s deference to state law on significant issues could be useful in litigation involving everything from health insurance regulation to policies regarding marijuana legalization. If Democrats were successful in blocking Gorsuch, they may end up faced with another Trump appointee who is less palatable on these and other areas of the law. Instead of expending political capital on blocking Gorsuch then, it would seem to be wiser to wait until a time when the nomination fight will actually have a significant impact on the Court, such as if and when President Trump is given the opportunity to replace a Justice such as Anthony Kennedy, Ruth Bader Ginsburg, or Stephen Breyer, all of whom are eighty years old or quickly approaching that age. Kennedy and Ginsburg are both eighty years-old or older, and Breyer will be eighty in 2018 if he does not retire before then.

Since I’m not a Democrat, it’s possible if not likely that my advice will fall on deaf ears, but it seems clear to me that, absent something revealed during the confirmation process that raises serious red flags, Democrats would be wise to reserve the majority of their fire for a time when it will actually matter.

 

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Pch101 says:

    The filibuster is a bad idea because the Republicans who oppose the nuclear option will be pressured into supporting it.

    However, that does not mean that the hearings cannot be used to stir up the Dems and other liberals. Embarrassing questions should be posed, and Democrats should use this as an opportunity to create further dissent and give liberals reasons wage war on Republicans.

    Gorsuch should be exposed for his support of apartheid and opposition to gay rights, which makes him an enemy of freedom and American principles of equality. There is no reason to mince words in the absence of a filibuster.

    The achievement of the Hamilton electors is that Trump was denied a honeymoon. By highlighting his lack of legitimacy from the start, we have given permission to the electorate to work for his failure, earning him a negative approval rating in record time without any stigma being attached to the effort. This work needs to be continued and accelerated without apology.

    Like or Dislike: Thumb up 5 Thumb down 4

  2. Michael says:

    There is no option. They must filibuster. The argument for the filibuster is not that Gorsuch is unqualified. He is very qualified. The argument for the filibuster is that Gorsuch would not have been the nominee for the seat absent the refusal to even consider Garland.

    Further, as we learned in 2010, 2014 and 2016, there is no price you pay for obstruction. If there was, the GOP would not have been so successful in those years.

    Third, since the rules can be changed at any time to end the filibuster what difference does it make?

    Like or Dislike: Thumb up 11 Thumb down 5

  3. Daryl's other brother Darryl says:

    This guy doesn’t seem awful…and he’s probably not as much of an activist as Scalia was.
    But those are reasonable points of discussion between reasonable people.
    Republicans have shown themselves to be completely unreasonable people…so fwck ’em.
    They declared war. Democrats have to use whatever they can to wage that war. They may not win this battle. But battle they must.
    Democrats have been operating without a spine for far too long.
    If they want to right the wrongs of Republicans and Trump…if they want to save the Republic from these people…then they are going to have to grow one and get down in the dirt like Republicans do.
    If Democrats even hint at rolling over Trump will just laugh at them.

    Like or Dislike: Thumb up 9 Thumb down 3

  4. Daryl's other brother Darryl says:

    I see that Donald “Drain the Swap” Trump has signed an executive order making it easier for Wall Street to bilk middle-class investors.
    Any one who voted for Trump is stark-raving insane.

    Like or Dislike: Thumb up 8 Thumb down 4

  5. David M says:

    There is no downside to filibustering Gorsuch. If it works, there is a chance for a less destructive nominee. If it doesn’t work, it means the next Democratic president can get a nominee confirmed.

    Like or Dislike: Thumb up 7 Thumb down 2

  6. Dave Schuler says:

    @Pch101:

    I agree with this:

    However, that does not mean that the hearings cannot be used to stir up the Dems and other liberals. Embarrassing questions should be posed, and Democrats should use this as an opportunity to create further dissent and give liberals reasons wage war on Republicans.

    Distinguish themselves from the Republicans. They can’t do that by imitating them.

    Like or Dislike: Thumb up 2 Thumb down 2

  7. Moosebreath says:

    @Michael:

    “The argument for the filibuster is that Gorsuch would not have been the nominee for the seat absent the refusal to even consider Garland.”

    This. To put it bluntly, the Republicans stole this seat. They made up a “rule” out of whole cloth to pretend that Obama’s term ended on January 1, 2016. And they were prepared to block Hillary’s nominees for her entire term had she been elected.

    So Democrats should fight Trump’s nominees with every tool at their disposal. Anything less is bringing a knife to a gunfight.

    Like or Dislike: Thumb up 8 Thumb down 2

  8. sherparick says:

    The idea that the Democrats need to respect norms after they have been shattered by the Republicans creates an asymmetric situation, particularly since the Republicans have bee awarded for breaking norms the last six years by winning both houses of Congress and the Presidency. Particularly since from the Democrats’ and/or the perspective of any one who wants to preserve the legislation and institutions created to check the elite rich in this country and their instrument the modern corporation from monopolizing wealth and income while leaving behind a ravaged natural world and impoverished population, the Democrats need to obstruct and delay every appointment, bill, and hearing that the Republicans adopt. The Democrats should state that they will drop the filibuster of Gorsuch if the nomination is Garland is voted up or down first.

    Also, the idea that we will “save the filibuster until we really need it” means never filibustering or forcing the Republicans to get rid of it. And ultimately, returning the Senate to a straight majority institution would be in the interest of progressive and liberal legislation assuming a majority in the House and Senate is restored. (I do expect at my most pessimistic moments that voting suppression in Red states and Purple states with Red State Legislatures may lead to a permanent rule by a minority based on white nationalism and plutocracy under a Trump dynasty no matter how disastrous the misrule of the next 4 years turns out).

    Like or Dislike: Thumb up 11 Thumb down 2

  9. Pch101 says:

    @Dave Schuler:

    The way for Democrats to distinguish themselves from the right is to avoid lying.

    The GOP needs to be branded as the party of liars. Democrats should welcome and encourage fact checking. A war should be waged on “alternative facts” and the media must be challenged to actively point out lies. No reason to let lies through without calling them out.

    Like or Dislike: Thumb up 2 Thumb down 1

  10. Daryl's other brother Darryl says:

    @Dave Schuler:

    Distinguish themselves from the Republicans.

    They did that and they lost the White House.
    Fire with fire. You can’t win a gun-fight holding flowers.

    Like or Dislike: Thumb up 6 Thumb down 1

  11. Erik says:

    Tit for Tat is the correct, scientifically demonstrated, winning strategy. The point here is that the ideological balance of the court after Scalia’s death should not have been preserved. It should have moved toward liberal with Obama making a nomination. There is no right to a conservative replacing a conservative, and if anyone thinks Trump will replace any liberal justice with another liberal should one leave the Court during his term I have a bridge right here for you, low mileage and only one prior owner.

    Like or Dislike: Thumb up 9 Thumb down 2

  12. Gustopher says:

    The filibuster serves no purpose if it cannot be used.

    Merrick Garland was the nominee of a liberal president having to content with a conservative senate — qualified, but older and pretty centrist.

    Gorsuch is an extreme right nominee, and young enough to stick around for thirty years or more.

    There is no comparison, and the Democrats should not back down. I can see backing down if there is a compromise nominee, but not Gorsuch.

    Like or Dislike: Thumb up 9 Thumb down 2

  13. Hal_10000 says:

    There is no downside to filibustering Gorsuch. If it works, there is a chance for a less destructive nominee. If it doesn’t work, it means the next Democratic president can get a nominee confirmed.

    The downside is the 2018 election, which already looks bad for Dems and would get worse with a motivated GOP based. And also that this tit-for-tat on judicial nominees has been escalating for 30 years and is almost out of control. A better response is to confirm him and ten, if another opening comes up in Trump’s last year of office, block that until after the election (assuming they have the numbers, which they probably won’t).

    Like or Dislike: Thumb up 4 Thumb down 3

  14. al-Ameda says:

    One thing is certain the days of the once thought to be admirable, ‘they go low, we go high’ approach are over for the foreseeable future. Republicans thrived when Democrats declined to join the battle. Democrats should force Republicans to go nuclear, that point was/is going to come sooner or later, so do it now. Show the Democratic base that you have a spine, put a nice big ‘f*** you’ in the face of McConnell/Trump, and all the while Justice Garland and Democrats everywhere will thank you.

    Like or Dislike: Thumb up 7 Thumb down 0

  15. Lauran says:

    How about the Democrats “respond” like mature adults and recognize and appreciate Neil Gorsuch for the brilliant, principled, competent professional he is–there’s an response they could consider?

    Like or Dislike: Thumb up 3 Thumb down 7

  16. Moosebreath says:

    @Lauran:

    I’ll consider it every bit as seriously as Republicans considered Garland.

    Like or Dislike: Thumb up 9 Thumb down 0

  17. al-Ameda says:

    @Lauran:

    How about the Democrats “respond” like mature adults and recognize and appreciate Neil Gorsuch for the brilliant, principled, competent professional he is–there’s an response they could consider?

    A very interesting idea, except that Senate Republicans showed us that the “mature adults” approach is not now necessary or operative. Just ask Merrick Garland, who was the model of professional competence, brilliant, and highly principled.

    I’m curious as to why many people now expect congressional Democrats to be the “mature adults’ on Capitol Hill, while there is no similar expectation of congressional Republicans? Do you have any thoughts on this?

    Like or Dislike: Thumb up 11 Thumb down 0

  18. Moosebreath says:

    @al-Ameda:

    “I’m curious as to why many people now expect congressional Democrats to be the “mature adults’ on Capitol Hill, while there is no similar expectation of Republicans?”

    Moreover, Democrats have acted as the mature adults over the Clinton and Obama presidencies, appointing justices they had cleared with senior Republicans, even when Democrats had the majority in the Senate. They appointed no one as far from the center as Alito or Thomas (or, by my early read, Gorsuch).

    Moreover, this seat was simply stolen, using a “rule” Mitch McConnell pulled from his hindquarters. If Republicans want comity, their first move should be to give it back.

    Like or Dislike: Thumb up 6 Thumb down 0

  19. Katharsis says:

    For the people who don’t follow politics, the filibuster shields them from the difference between the parties. It is time that reality catches up with them.

    Like or Dislike: Thumb up 3 Thumb down 0

  20. Just 'nutha ig'rant cracker says:

    The achievement of the Hamilton electors

    Huh? Is someone shooting for becoming the Kellyanne Conway of the left?

    The way for Democrats to distinguish themselves from the right is to avoid lying.

    Like or Dislike: Thumb up 2 Thumb down 0

  21. Erik says:

    @Lauran: if Gorsuch were truly principled, he would have responded to his nomination by saying, “thank you. I am extremely flattered. Unfortunately you spelled my name incorrectly, however. It should be G-a-r-l-a-n-d.”

    By accepting the nomination he has made himself complicit in the theft of the seat.

    Like or Dislike: Thumb up 8 Thumb down 1

  22. HarvardLaw92 says:

    OT, but a federal judge (Bush appointee) in WA state just issued a stay blocking enforcement of Trump’s immigration EO.

    The scope is nationwide.

    Like or Dislike: Thumb up 5 Thumb down 0

  23. Terrye Cravens says:

    Doug, it is the principle of the thing.

    Like or Dislike: Thumb up 1 Thumb down 0

  24. ptfe says:

    If it comes to hearings, they need to spend the entire nomination process asking what he thinks of Merrick Garland, whether the Senate violated is constitutional duties by refusing to advise on the nominee, and whether he would remove his name for consideration of he were offered a post unethically.

    Seriously, though, they should take up future nominations for other SC seats if vacancies appear, but filibuster the shit out of nominees for this one. The Republicans acted in a way that’s destructive to the functioning of our country’s institutions, and Americans need to be reminded of that every day.

    Like or Dislike: Thumb up 6 Thumb down 0

  25. Scott F. says:

    @al-Ameda:

    A very interesting idea, except that Senate Republicans showed us that the “mature adults” approach is not now necessary or operative.

    Moreover, the Republican approach of “fake news” and “alternative facts” is reaping clear dividends. Loathe as I am to go there, it may be time to fight on equal terms there as well.

    With that in mind, I have investigators in Colorado and they can’t believe what they are finding. Many people are saying that Gorsuch is a pedophile. The number of people involved in the cover-up is huge – 1 million, maybe 1.5 million people – and I have photos to prove it that I’ll show you later. Also, I saw on TV that Gorsuch was a collaborator with those Iraqis on the Bowling Green Massacre.

    Like or Dislike: Thumb up 2 Thumb down 1

  26. Pch101 says:

    @Just ‘nutha ig’rant cracker:

    A majority, 53%, disapprove of the way the President is handling his job, according to a new CNN/ORC poll, marking the highest disapproval for a new elected president since polls began tracking those results. Trump is the only President to hold a net-negative rating this early in his tenure.

    http://www.cnn.com/2017/02/03/politics/donald-trump-approval-rating/

    Talking about Trump’s illegitimacy gave voters permission to disapprove of the president before he had even started — no honeymoon at all. That would have been unthinkable not long ago.

    (Give credit to Rush Limbaugh for doing it to Obama first.)

    Like or Dislike: Thumb up 4 Thumb down 0

  27. george says:

    How much effort is it to nominate and then have the senate decline a candidate. I know why Trump isn’t doing it – subtle isn’t a word in his dictionary. But in an alternative universe, could someone like Trump nominate Garland knowing the GOP senate would vote no, and then nominate Gorsuch knowing he’d ultimately be confirmed?

    Its a carry over from what I was wondering about the GOP refusing to give Garland a hearing – wouldn’t it have been as simpler, and look better, simply to give him a hearing and then vote no? The only reason they didn’t, as far as I can tell, was because the GOP was afraid of its base voters response to even giving a hearing.

    Like or Dislike: Thumb up 4 Thumb down 0

  28. Ann L says:

    @Pch101: “Democrats should use this as an opportunity to create further dissent and give liberals reasons wage war on Republicans.”

    Absolutely wrong, no matter which side of the aisle is thinking like that.

    Like or Dislike: Thumb up 0 Thumb down 3

  29. SKI says:

    @Hal_10000:

    The downside is the 2018 election, which already looks bad for Dems and would get worse with a motivated GOP based.

    Flag! Ignores the reality that rolling over, again, will demoralize the progressive base.

    The current situation in DC is classic Prisoners Dilemna and the opponent is a demonstrated ammoral asshole.

    Like or Dislike: Thumb up 5 Thumb down 1

  30. Pch101 says:

    @Ann L:

    Yes, the idea that Poland would have fought Germany is just offensive.

    No reason to consider who started it or to hold that side culpable for what it has done. Both sides were shooting at each other, so both sides do it.

    Like or Dislike: Thumb up 5 Thumb down 0

  31. al-Ameda says:

    @Ann L:

    Absolutely wrong, no matter which side of the aisle is thinking like that

    Unfortunately for that idea, Republicans have noticed and learned that there are no electoral consequences for their toxic and malevolent behavior. I hope that Democrats have watched, listened and learned.

    Yes, ‘both sides too it’ however, if one side does it 95 times,and the other side 5 times it is technically correct to assert that ‘both sides do it’ however it is also the rhetorical equivalent of junk food/empty calories. It’s content-free, one should acknowledge reality and context.

    Like or Dislike: Thumb up 2 Thumb down 0

  32. Tyrell says:

    I agree that Judge Merrick should have been approved. He seems a good, sensible person.
    There is no way to really predict how these justices will work: there have been surprises. Judge Warren comes to mind, and Joltin” Joe Roberts. And what will be the issues in the future ? Things like artificial intelligence, virtual reality, cloning, and a lot more tech issues than we even see now (RFID’s ?). Just look at the news of the last few weeks: “Human Pig Embryo Made” (Nature Journal). That really got some coverage and controversy.
    ” What have you become ?” “Exactly what you made me” (Westworld, HBO)

    Like or Dislike: Thumb up 0 Thumb down 1

  33. The Democrats should be worried with the Midterm Elections. There is very little that can be done about Gorsuch – filibustering a SC Justice is more difficult than filibustering an Appeals Judge.

    Two more years with Trump having a majority in the Senate is going to be a disaster.

    Like or Dislike: Thumb up 3 Thumb down 0