Democrats: choose your battles
There’s been a lot of chatter over the past few weeks about how Senate Democrats should handle the nomination of Neil Gorsuch to the Supreme Court.
Since Senate Republicans blocked Merrick Garland, Obama’s nominee, from even getting a hearing for the better part of a year, liberals are furious. Pundits are exclaiming, and with good reason, that the base wants blood. They’re telling Senators: show voters that you’re willing to fight tooth and nail, or get replaced next election cycle.
I want to send a different message to those Senators: “choose your battles.”
Why not to wage all out war over Gorsuch:
Here’s a few things to consider:
The base will be with you, but that’s probably it. I’m extremely Anti-Trump. From his policies, to his demeanor, to his aptitude, to his contempt for democratic institutions, I disagree with almost all of it. I think he’s toxic. And the way Mitch McConnell left an open seat on the Supreme Court, on the off-chance Republicans won the White House? A despicable power play that just happened to pay off.
In other words, you’d be hard-pressed to find something that I don’t want Democrats to fight Trump and the Republicans on. But this nomination? My heart’s just not in it. And I think most people in the political middle, or those who just passively consume news, will see headlines like:
President Trump on Tuesday nominated Judge Neil M. Gorsuch to the Supreme Court, elevating a conservative in the mold of Justice Antonin Scalia to succeed the late jurist
… and think: Hmm, seems fair. Scalia passed away, and Trump is replacing him with someone who’s similar in approach, style, and philosophy. He has superb qualifications, objectively speaking. He seems likely to exercise independence from Trump. His level of “conservatism”, (while estimated to be the highest of the court by some) is estimated to be similar to Scalia’s by The New York Times and others.
In other words, most people will think: we’re replacing Scalia with a mini-Scalia? So what are we filibustering for? Opposing him on grounds other than his qualifications as a justice will be a hard thing for anyone but a die-hard liberal to rally around. Don’t let emotions turn us into the very thing we loathed about Republicans: mindless obstructionists.
What’s the end game? Here are the outcomes I see if Democrats go full obstructionist filibuster:
- So you filibuster. Until… forever? Are you going to try to pull what the Republicans did, but for four years? Besides being terrible governance, it’s also untenable politically. What, we’ll just never get another justice? It doesn’t make sense.
- While you’re filibustering, maybe Mitch McConnell pulls the “nuclear option” and Senate Republicans rewrite the rules to get rid of the filibuster for the Supreme Court. In which case Gorsuch gets nominated by a simple majority, and the filibuster no longer exists. Given my points above, I imagine a majority of the electorate will agree with the decision, because the Democrats will be cast as unreasonable obstructionists.
- The outcome you want is that the filibuster works, and Trump and McConnell think the risk of getting rid of the filibuster is so great that they actually rescind Gorsuch and nominate someone more moderate. I cannot imagine this happening. McConnell has expressed hesitation about removing the filibuster in the past, but they won’t back down that far. And what other concessions can they give? It’s all or nothing, and they’re not going to take nothing.
So in the end, It’s very likely Gorsuch gets confirmed anyway, as Senator Gillibrand admitted recently.
There may be a ‘Next Time.’ It’s possible more seats will open during the Trump presidency, as scary as that is. Now, I’ve heard pundits say “if you’re afraid to lose the filibuster on the first nomination, what the hell makes you think it’d work on a second?”
I’d argue that the political calculations will be different.
- Trump would be trying to replace a moderate or liberal justice with another conservative, potentially swinging the balance of the court for a generation.
- For this reason, Democrats can claim much more forcefully that getting a mainstream justice nominated is a must. It feels fair, and the stakes are much higher. I think you’ll have both the base and moderate democrats clamoring for a fair nomination, and claims of obstruction are less resonate when we’ve already nominated one of Trump’s nominees (Gorsuch).
- As a result, going all-out with a filibuster becomes politically tenable. The choices for Republicans are clear from the beginning, even before Trump makes a nomination: choose a mainstream justice (and get the nomination), or get rid of the filibuster (and risk political blowback and future erosion of power when Republicans are once again in the minority). The conversation then becomes about the Court, balance and good governance; not just payback for Merrick Garland. This, combined with broader public support, may be enough to save the filibuster and get the nominee America deserves.
What’s the alternative now?
I’m not arguing that Democrats shouldn’t put up a fight on Gorsuch.
They should absolutely grill him during the hearings, and make sure he is a qualified, impartial, independent justice. They should take every opportunity to paint Republicans as hypocrites and political opportunists for the way they handled Merrick Garland, and then lobbed accusations of obstruction at the Democrats. They should vote their conscience: if he doesn’t represent what they believe a justice should, then vote “No.” If the hearings uncover some terrible things, maybe he won’t get confirmed.
But don’t obstruct the process or filibuster indefinitely. Democrats could set themselves apart (not to Republicans, but to moderates and independents) by taking the high road on Gorsuch: fighting the battle on the terms they’re meant to be fought and casting Republicans as government obstructionists, even when they’re in power.
Use the opportunity and attention as a soap box. And then move on to battles we can win.
