The Last Battle Of The Obama Presidency
The Gorsuch nomination and what passes for the Democratic resistance
This week marks the last battle of the Obama presidency.
In a few hours, the Senate will begin a series of committee and full-chamber votes to fill the Supreme Court seat left vacant by the death of conservative jurist Antonin Scalia, a vacancy left unoccupied by Senate Republican design for over a year.
Nominee Neil Gorsuch needs a minimum of 60 votes to end debate in the Senate over his nomination. If a handful of Democratic (and independent) Senators peel away and join the GOP, he will become the 9th Supreme Court justice of the United States.
On the other hand, if Senate Minority Leader Chuck Schumer prevails in his effort to filibuster the nomination, Senate Republicans will invoke the nuclear option by the end of the week, scuttle the filibuster forevermore, and Gorsuch will become the 9th Supreme Court justice of the United States.
Either way, there will be outrage.
“The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new president,” Majority Leader Mitch McConnell said back in February of 2015.
The GOP Senate majority thus refused to even consider a replacement for the late Justice Scalia until after the November elections.
For the rest of the election cycle, as moderate Obama nominee Merrick Garland waited in vain for a Senate hearing, liberal America debated whether a President-elect Clinton should stick with Garland as a peace offering to chastened Republicans or forge ahead with a more provocative nominee, empowered by a mandate from the American electorate.
In retrospect, the wide-eyed optimism and naïvete of the Democrats is almost as adorable as it is tragic.
Now in his third month as president, Trump nominated Neil Gorsuch, a Scalia stand-in with a stern distrust of federal regulations who would have been an unremarkable and conservative nominee were it not for the backstory to his Senate hearings. The debate over whether to oppose Gorsuch — by all accounts a competent, qualified jurist — is entirely over whether or not Democrats should exact payback for the nearly year-long block on Garland.
The majority of Americans want the confirmation to go ahead, though self-identified liberals and Democrats give blocking Gorsuch a two-thirds approval rating. Still, Senate minority leader Chuck Schumer has pledged, on behalf of Senate Democrats, to filibuster the nomination.
The Democratic establishment has built up a bit of press momentum in recent weeks and no doubt hopes to keep that going. Somewhat favorable reads in The New York Times Magazine and the The New Yorker credited the party with finding a something approaching a spine — even if Matt Taibbi excoriated their early accommodationism for Rolling Stone.
Now comes the moment of truth. Schumer and Co. are gambling that they can hold together 40 out of 48 Senators to give their core supporters the kind of symbolic victory they failed to score during the cabinet confirmation hearings — and, indeed, the kind of visible “win” that will be hard to manage or repeat as the Party operates from a position of weakness across much of the country.
Breitbart has been trumpeting each new Democrat defection, as Senators in states that went to Trump try to put on a conciliatory air (amidst a hefty pro-Gorsuch campaign). Still, most of the red-state Dems are solidly in the filibuster camp. The only path to avoid the filibuster likely runs through John Warner (VA), Angus King (ME), Diane Feinstein (CA), and Michael Bennet (CO).
Given what’s at stake, a conservative majority on the Supreme Court and another originalist on the bench for the next three decades (probably), it’s hard to see eight senators from the Democratic caucus bucking the party — but if it happens, it’s equally difficult to see how the Dems will be able to claim seriously that it can galvanize and inspire its base in 2018.
The best case against the filibuster is that it is best held in reserve for some future judicial battle — for when a new opening on the court gives Trump and the Senate a chance to nominate a real extremist. Yet with trust in the Senate at such a low point, it is hard to see why the Senate GOP wouldn’t simply pursue the nuclear option then —again confirming the nominee at hand with a simple majority.
The Democrats won’t often have the luxury of picking their battles because the Republicans don’t really need to work with them for the next two years — except in cases like this, where a simple majority won’t do. If this isn’t a battle for the Dems to pick, there isn’t one. And if they don’t pick a fight now, voters shouldn’t let them forget it come primary season.
Andrew Leber is based in Boston. He’s a Ph.D. student at Harvard University’s Department of Government.
