It May Not Pay Off, But Democrats Should Block Gorsuch Anyway
The author makes four distinct arguments why Democrats should not use their filibuster to block Neil Gorsuch’s nomination, but each is dubious.
First, the author implies that it would be intrinsically wrong for Democrats to block the nomination. This argument appeals to democratic norms, which say that the Senate should give a president relative deference to appoint their justices. Per this argument, since Trump won the election, he should have relative free rein to appoint a conservative justice.
Yet this argument provides the appearance of democratic norms without the substance. When electing Obama in 2012, voters were not electing him for a 3-year term stretching from January 2013 to December 2015. Under the Constitution, the president’s term runs for four years. Even the traditional deference given by outgoing presidents to their successors between Election Day and Inauguration Day, the so-called ‘lame duck’ period, has no constitutional grounding.
To claim that Democrats must assent to Trump’s nominee when Republicans showed no similar deference ties them to asymmetric warfare, defending both progressive ideals and democratic norms against hostile assault. Furthermore, the author conflates the Republican’s nakedly-partisan attempt to hold a seat open, hoping they would win the presidency, with Democrat’s opposition to Gorsuch on ideological grounds.
Second, the author argues that Gorsuch is the best possible nominee that Democrats could expect. Specifically, the author cites Neal Katyal’s claim that the Democrats should support a nominee that stands up for the ‘rule of law.’ The issue is that the ‘rule of law’ typically means near-unlimited deference to police and the harsh restriction of civil rights. Although Gorsuch made a few liberal rulings, his record on criminal justice is still quite conservative, and his jurisprudence elsewhere is extremely conservative.
Additionally, the 2016 election was close by historical standards. Trump won the electoral college with 56.5% of total electoral votes. By comparison, the median electoral college margin was approximately 70% of electors. Trump also lost the popular vote by 2%, the largest popular vote loss for the electoral college winner since 1876. Under these circumstances, Democrats could reasonably argue that a centrist or centre-right candidate, similar to Anthony Kennedy or John Roberts would reflect the popular will, whereas Gorsuch falls right of everyone except Clarence Thomas.
Third, the author claims that Democrats would suffer electorally for obstructing Gorsuch’s nomination. This claim is blatantly ahistorical. When Obama was elected in the 2008 wave with a near filibuster-proof majority, Republicans opposed vast amounts of his legislation, including his signature Affordable Care Act, which passed the House with one Republican vote and the Senate on a party-line vote.
Irrespective of one’s position on the ACA, it is a historical fact that Republicans monolithically opposed the legislation on ideological grounds. On the eve of the 2010 midterm election, Mitch McConnell declared that to achieve his party’s ideological goals, their first political priority was to make Obama a one-term president.
For this act of partisan and ideological obstruction, voters punished the Republicans by giving them a House majority in 2010, a Senate majority in 2014, and the presidency in 2016.
In the 2016 election, voters who considered the Supreme Court important to their choice voted 49% to 47% for Trump. The subset that considered it the most important factor in their choice voted 56% to 41% for Trump. This evidence suggests that the voters most concerned with the Supreme Court did not care about Republicans’ obstruction, they cared about seating a justice that shared their ideological beliefs.
Finally, the author argues that Democrats should not filibuster because Republicans can eliminate the filibuster through the so-called ‘nuclear option.’ Implicitly, this argument claims that the Democrats want to preserve the filibuster now, so that they could use it against a more extreme candidate if Trump has a chance to fill a second vacancy.
However, a weapon that Republicans can unilaterally disarm at any time is no weapon for Democrats at all. There are three possibilities:
(1) Republicans will eliminate the filibuster for any candidate;
(2) Republicans will not eliminate the filibuster for any candidate; or
(3) Republicans will eliminate the filibuster for Gorsuch, but not for a future extremist candidate.
If (1) is true, then the filibuster is a pointless facade. The only value the filibuster provides is getting the Republicans to declare on the record that appointing their candidate is more important than democratic norms by voting to formally eliminate the filibuster.
If (2) is true, then Democrats should use their power as the minority party to demand a nominee acceptable across parties, such as a Kennedy-like centrist. The idea behind liberal democracy and constitutional restrictions are to prevent majoritarian rule. As long as Republicans cling to these norms, they are obliged to acknowledge the interests of the minority party.
Thus, Democrats should only not filibuster Gorsuch if (3) is true. The author provides no evidence that Republican Senators would consider opposition now to be unacceptable obstruction, but accept a filibuster of a future nominee.
Furthermore, (3) allows Republicans to confirm future nominees, provided they are not more extreme than Gorsuch. Yet he would be the second-most conservative justice on the court. Short of nominating Ted Cruz to the Supreme Court, Trump cannot move dramatically farther right. Accepting Gorsuch now lets Trump redefine the boundaries of acceptability, allowing him to nominate equally-conservative justices to any future vacancies.
Despite the author’s claims, the Democrats have few good reasons to acquiesce to Trump’s nominee and many reasons to oppose him.