Filibustering Gorsuch’s Nomination Is The Least Democrats Can Do

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Calling out congressional hypocrisy is almost hack at this point, but this week’s Supreme Court kerfuffle has seemed like such a high-water mark of transparent disingenuousness that it bears mentioning.

To recap, thanks to an ill-advised Democratic rule change in 2013, Republicans have the votes to confirm Trump’s court nominee Neil Gorsuch — this after a week of insufferable questions about ski vacations and fishing. Which you’d think they would just do, “do what thou wilt” being the first and only rule of politics.

Only now, apparently, it’s not enough that they simply confirm him. They also want us, the general public, to participate in the delusion that Democrats simply voting against Trump’s nominee for the court seat Republicans stole from Barack Obama is some uncouth ploy of hyper-partisanship.

A few days ago, Senator Lamar Alexander of Tennessee gave a speech in which he said in part, “Filibustering to death the Gorsuch nomination — or any presidential nomination … — flies in the face of 230 years of Senate tradition.”

He also added that “Sen. Everett Dirksen did not filibuster President Johnson’s nominees. Sen. Robert Byrd did not filibuster President Reagan’s nominees. Sen. Howard Baker did not filibuster President Carter’s nominees. Sen. Bob Dole did not filibuster President Clinton’s nominees.”

Giving a history lesson as a way to distract from much more recent history is certainly a novel strategy. It’s almost as if hearkening back to simpler times is the only thing Republicans know how to do.

Sounding a similar theme, Arizona Senator Jeff Flake wrote, in his otherwise Penthouse Letter-esque paean to Neil Gorsuch, to whom Flake referred phallically as “an immovable pillar weathering a storm”:

There was a time when the Senate didn’t even require hearings for Supreme Court nominees, and as recently as the 1990s, nominees were routinely confirmed with near-universal, bipartisan support. Even President Obama’s two Supreme Court nominees were recognized for their ability to do the job and confirmed without incident.

“Two Supreme Court nominees?” That point was so close to libel that the Arizona Republic even included a disclaimer at the top of the guest piece.

We are now approaching Soviet levels of lying with a straight face. In real life, Obama’s third Supreme Court nominee was nominated to replace Justice Scalia in March 2016.

The obvious point that all this ski talk and wistful nostalgia for a kindler, gentler past is meant to distract from is that Neil Gorsuch’s nomination was only made possible through a virtually unprecedented course of congressional inaction on Merrick Garland’s nomination.

Just how weird was this? Obama still had 11 months left in office when Justice Scalia died in February 2016. Republicans justified (specifically Senate Majority Leader Mitch McConnell, Senator Chuck Grassley, and Speaker of the House Paul Ryan) putting off Obama’s nominee, saying that a delay would “give the American people a say in the process.”

Logically, this was a strange point to make, given that Obama won the only two presidential elections he was a candidate in, which would seem to have already afforded the public a fair say in who they wanted to be the person who appoints judges. It was also curious from a historical standpoint, given that, as historian Barbara Perry pointed out at the time in the Washington Post, a full one-third of all US presidents had appointed Supreme Court justices in an election year.

Republicans didn’t vote down Garland, they simply refused to even hold a hearing, transparently as a strategy to let the appointment pass to Obama’s successor. This was an exceedingly rare move that flies in the face of Senate tradition, though they did have various strategies to justify it.

As The Federalist wrote at the time, “there’s ample precedent for rejecting lame duck Supreme Court nominees.”

Well yes, precedent for rejecting, sure. Precedent for simply taking no action? Not so much.

The last time a Congress simply sat on their hands with a nominee until the appointing president left office was in 1881, with Rutherford B. Hayes nominee Stanley Matthews. But Matthews was actually nominated after the 1880 election, in which Hayes was defeated. And, the incoming president, James Garfield, renominated Matthews, who was then confirmed.

Before that, there was Andrew Johnson, an un-elected president who took office when Lincoln was assassinated, whose nominee Congress never voted on. But even in that case, with a historically unpopular president who had been impeached by the house, congress didn’t believe they could simply just stall. Instead, they nullified Johnson’s nominee by shrinking the size of the court to seven (congress increased that to nine during Grant’s term, a number which has stood ever since).

Throwing out those examples, congress’s refusal to vote on Garland until Obama left office was without precedent since before the Civil War. The only prior cases of no-action-until-the-nominating-president-left-office — stolen seats, in other words — occurred during the terms of Millard Fillmore and John Tyler. Both of whom were also, like Johnson, unelected presidents, and who presided during times so hyper-partisan that it would eventually lead to, well, the Civil War. Citing examples from the lead-up to the country’s bloodiest war to justify current action does not exactly inspire confidence.

Moreover, even Tyler and Fillmore’s stolen appointments took place before hearings for Supreme Court nominees became standard practice. And even then, congress didn’t just come out and say that they were delaying specifically to deny a president his right to fill a vacant seat. “Despite the stolen Supreme Court seats of the mid-1800s, says [Charles Gardner Geyh, a law professor at Indiana University], the modern Senate’s outright declaration that no Obama nominee would get a hearing or vote in 2016 still violated the Senate’s norms. None of the tabled nominees of the 1800s were federal judges like Garland, whose qualifications the Senate endorsed in 1997 by confirming him for his appeals court seat, 76-23.”

Yes, even in the days when people were treating fevers with bloodletting and giving teething babies morphine, congressmen were more clever than that. It feels a lot like Trump’s Muslim ban, where they’d probably get away with a lot more if only they could just stop explaining their evil plan to anyone who will listen like the villain of a lesser Bond movie.

Only in the case of the Supreme Court seat, Republicans seem destined to get away with it. And thanks to Democratic incompetence, natch. The Republicans wouldn’t even have the nuclear option if the Democrats hadn’t given it to them in 2013, when Harry Reid helped eliminate the filibuster procedure for presidential nominees to stop Republican obstruction of Obama.

Which makes this week’s whining even more pathetic. The big debate is over whether Republicans will have to “go nuclear” to confirm Gorsuch — that is, to confirm him with a simple majority rather than the traditional 60 votes (which would require eight Democrats to vote to confirm), and whether Democrats should make them. The alternative being cutting some sort of deal with the party who just steamrolled them.

Putting aside the fact that there are a number of legitimate reservations on the merits of Neil Gorsuch (from the fact that his nomination was supported with $10 million in dark money that primarily came from anti-abortion groups, to the case Al Franken cited, when Gorsuch voted to uphold the firing of a truck driver for refusing to drive an unsafe rig or stay with it in freezing conditions), he never should’ve gotten a hearing or a vote before Garland in the first place.

When Gorsuch was asked about the $10 million campaign, by the way, he somehow interpreted this as a question about his family.

“There’s a lot about this process I regret. I regret the stress it’s putting on my family.”

The Citizens United court ruling has allowed anonymous super rich people to buy political candidates, and thanks to the Supreme Court, Congress would probably need to pass a constitutional amendment to stop it, and now a potential judge on that court is saying, in effect, “Yeah, but the real question is, how has this affected my kids?”

So, should the Democrats make the Republicans use “the nuclear option” to confirm Neil Gorsuch?

Hell yes they should. How is this even a question? Gorsuch’s unctuous dork act is so practiced that he’s almost certainly dangerous, but more importantly, would you really trust the group who just stole your appointee to play nice next time? And what would that even look like? I doubt congressional Republicans even know. Moreover, are you really expecting the group saying “Obama’s two Supreme Court nominees” with a straight face to remember your deal six months from now?

Voting no is not obstruction. That’s just how voting works. Republicans have the numbers, and they can shove Gorsuch down our throats now because Democrats gave them the tools. But if you can’t stop the Republicans from confirming their stolen nominee, the least you can do is not help them pretend that this is somehow normal.