How hard should Democrats fight the Gorsuch nomination, and to what end?
If the only goal is to prevent Gorsuch from being confirmed, it probably doesn’t matter what they do. Absent the unlikely emergence of some shocking, disqualifying revelation about Judge Gorsuch, the Senate is going to confirm him.
If Majority Leader Mitch McConnell can’t muster enough votes to terminate a filibuster by Senate Democrats, he will invoke the so-called Nuclear Option (”Republicans Are Likely to Use the Nuclear Option”). That will enable the Senate Republicans to confirm Gorsuch without a single vote from the Democrats.
If the Nuclear Option is going to render any filibuster futile, why should Democrats mount one in the first place? Why bother?
The answer is that Democrats should not be complicit in placing a Justice on the Supreme Court who threatens to reverse everything they believe in, and will have the power to do so.
Some argue that Democrats should support Gorsuch’s confirmation on the “elections matter” theory. That is, a President is entitled to select a nominee who is aligned with the President’s political and judicial philosophy so long as the nominee is well qualified, has a good judicial temperament, and doesn’t subscribe to fringe political or judicial views.
Gorsuch may meet that test, although there is certainly room for disagreement on whether he subscribes to fringe views.
Gorsuch revealed almost nothing during the Senate Judiciary Committee hearings, other than an affable gosh-and-golly personality. That caused some to wonder what he might be hiding.
The New York Times recently published an analysis of where Gorsuch would fall on the ideological spectrum of Supreme Court Justices (“Where Neil Gorsuch Would Fit on the Supreme Court”). The authors of that analysis concluded that he would be to the right of everybody currently on the Court except Justice Clarence Thomas. And even to the right of the late Justice Scalia.
Gorsuch’s judicial history lends some support to that conclusion. His writings suggest an inclination to favor corporate interests over individuals, and extremely conservative views on the extent to which courts should defer to federal agencies’ interpretations of ambiguous laws, the extent to which religious freedom rights trump other core values, and the validity of assisted-suicide laws.
Republicans argue that none of this warrants the label “fringe.” Gorsuch’s ideology is probably mostly in line with the conservative wing of the Republican mainstream. That ideology may be anathema to progressives, but that doesn’t necessarily make it “fringe.”
So there’s at least an argument that Senate Democrats should vote to confirm Gorsuch, following a set of unwritten rules designed to promote compromise rather than erect obstacles.
But those rules don’t work in today’s political environment.
Supreme Court nominations are not generic. Each unfolds in its own specific time and context. And this just isn’t the time to try to resurrect clubby Senate traditions.
Republicans threw the old rules out the window last year when they refused to hold hearings on President Obama’s nomination of Merrick Garland. Garland, like Gorsuch, was well qualified, highly respected, and not viewed as an ideological flamethrower. Republicans refused even to meet with him, much less give him a committee hearing or a floor vote. Instead, as discussed in an article last month (“Why Democrats Must Oppose Gorsuch”), they pretended to apply a non-existent rule against considering a nomination in the last year of a presidential term.
Democrats arguably should not withhold support for Gorsuch merely out of revenge for what the Republicans did to Garland. But neither should they let the mistreatment of Garland go completely unanswered.
Democrats can’t play by their own set of genteel softball rules while Republicans are playing hardball and hurling fastballs at their heads.
And it’s not just about Garland. There are compelling substantive reasons to oppose Gorsuch.
This is not “just another” Supreme Court nomination. It comes at a time when there is a 4-4 ideological split on the Court, a deeply divided nation, and enormous stakes.
Just about everything Democrats hold dear is on the line. If Gorsuch delivers the tie-breaking vote on the conservative side in one major case after another, as he is expected to do, the result would be devastating for Democrats, and for the country.
Do the Senate Democrats really want to aid and abet the possible reversal of Roe v. Wade? Do they want to cast a vote that could affirmatively facilitate the criminalization of abortion, just because they can’t stop it from happening?
Do they want their fingerprints on suppression of voting rights, reversal of recent gains for the LGBTQ community, or the advancement of theories of “religious freedom” that are really just fig leaves designed to provide cover for acts of discrimination?
All of this just to genuflect to the phantom of Senate gentility?
If these values are not sufficient to compel Democratic senators to take a strong stand, what is?
Once the Senate Democrats get to “no,” the next question will be whether they should mount a filibuster. Setting aside for a moment the Nuclear Option, a filibuster would change the number of votes needed to get Gorsuch confirmed from a simple majority (51 votes) to a three-fifths super-majority (60 votes).
And this is not just a numbers game.
A requirement of a simple majority to confirm a Supreme Court Justice means that a party that controls both the White House and the Senate can ram through any nomination without getting a single vote from the minority party.
A requirement of 60 votes, on the other hand, would provide strong incentive for the majority party to look for nominees who could get at least a handful of votes from the minority party. The 60-vote requirement thus encourages at least some measure of bipartisanship and compromise.
So there is ample reason for Senate Democrats to stand up for the 60-vote rule by mounting a filibuster.
The fly in the ointment is that Senate Republicans can eliminate the 60-vote requirement by changing the rules with the Nuclear Option.
The question for Democrats is whether they should abandon the 60-vote requirement, and thereby allow Republicans to confirm Gorsuch with a simple majority, out of fear that McConnell may be able to thwart them with the Nuclear Option. The answer to that question should be easy.
Democrats shouldn’t disarm just because McConnell may have a bigger gun.
To be sure, there’s a potential downside to forcing McConnell to go nuclear. If that becomes the new normal, the moderating benefits of the 60-vote rule will be lost.
But if the minority party doesn’t use the 60-vote requirement out of fear that they will lose it, what good is it anyway? And there’s at least some possibility, admittedly slim, that forcing the Republicans to use it here will initiate discussions that will bring both parties to their senses and take the nuclear option off the table for future Supreme Court nominations.
Some argue that the Democrats should hold their fire until Trump’s next Supreme Court nominee. “Sharp and uniform opposition to him would look radical,” warns conservative columnist and scold Peggy Noonan.
Oh, the horror!
Noonan yearns for more compliant Democrats. They should “softly vote yes” on the Gorsuch nomination. “They should make a show of their desire to be fair, impartial, Constitution-minded,” says Noonan, “then they should try to kill the next nomination as a bridge too far, while hiding behind the good faith they showed in accepting Judge Gorsuch.”
Why in the world would anyone believe that rolling over now is going to make it easier to block confirmation of Trump’s next nominee? Senate Republicans aren’t going to be shamed into declining to use the Nuclear Option next time just because Democrats showed “good faith” and didn’t force them to use it this time. What part of “whatever it takes” are we supposed to not get?
Another argument being advanced in favor of Senate Democrats holding their fire is that Gorsuch is as good a nominee as they will ever get from Trump. If Gorsuch isn’t confirmed, the argument goes, his replacement is likely to be even worse. William Pryor, anyone?
Not a problem. Not going to happen.
This is what’s known as a free vote. A free vote occurs when you know that you are on the losing side, so your vote can’t affect the outcome. The point of a free vote is to make a statement, not to take legislative action.
It’s what the Congressional Republicans did when they voted, time and again, to repeal Obamacare, knowing full well that any repeal of Obamacare would be vetoed by President Obama.
To be sure, there can be some risk in casting a free vote. Sometime down the road, you could find yourself in a position where, having voted for legislation you knew couldn’t be enacted, you are unable or unwilling to vote for that same legislation when you actually have the power to pass it.
You could become the dog that caught the truck.
You could be unmasked as a craven and hypocritical posturer, not a legislator. Like the Republicans were with Obamacare.
But Senate Democrats don’t run that risk in voting against Gorsuch. Their vote will not impact the outcome, now or later. However they vote, he is going to be confirmed, period. McConnell will see to that.
So why shouldn’t Democratic Senators use this free vote to take a stance and make a statement in support of their most dearly held values?
There’s an art to resisting from a minority crouch. The Republicans built a movement around symbolic resistance, and are now reaping the rewards.
Sometimes knowing you can’t win can be liberating.
Philip Rotner is an attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow Philip on Twitter at @PhilipRotner.