You may have missed it amid the Sturm und Drang over the fate of health care, but late last week Chuck Schumer announced that Senate Democrats would filibuster President Trump's nomination of Neil Gorsuch to the Supreme Court.
Schumer will almost certainly fail. But it’s worth trying to stop this illegitimate nomination. And if Senate Democrats approach it in the right way, they can make an important statement about our broken system of government and what happens when only one of our major parties is willing to respect the norms and traditions that have long guided us.
Unfortunately, Schumer is already off on the wrong foot. According to Brian Naylor of NPR, the Senate minority leader said that Gorsuch “was unable to sufficiently convince me he’d be an independent check” on President Trump, and that Gorsuch was not “a neutral legal mind, but someone with a deep-seated conservative ideology.”
The problem with this is that Gorsuch is not the issue. Though severely conservative, as Mitt Romney might say, he is well-qualified, according to the American Bar Association. By appointing Gorsuch, Trump chose a justice whom any Republican president might have picked. It’s not going too far to say that the Gorsuch appointment was the most normal act — perhaps the only normal act — of Trump’s brief presidency.
But it can’t be emphasized enough that Gorsuch has been appointed to fill a stolen seat. As we all know, President Barack Obama chose Merrick Garland for the court last year when Justice Antonin Scalia suddenly died. Even though Garland was a moderate who had drawn praise from Republicans in the past, Senate Republican leader Mitch McConnell refused even to give Garland a hearing. McConnell’s bogus excuse was that Obama was in the last year of his presidency — never mind that Garland was appointed nearly eight full months before Election Day.
McConnell’s act was deeply transgressive. Although he and other Republicans tried to invoke the unacted-upon remarks of Joe Biden some 24 years earlier, there was, in fact, no precedent for the Senate’s refusal to take up the Garland nomination. Like Gorsuch, Garland received the ABA’s top rating, and he deserved a hearing and an up-or-down vote.
Harvard Law School professor emeritus Alan Dershowitz recently wrote an op-ed piece for The Boston Globe in which he urged Democratic senators to press Gorsuch on his understanding of the Constitution’s “advise and consent” clause — the process under which the Senate considers presidential appointments such as Supreme Court justices.
“There is nothing in the Constitution that would allow senators to refuse to perform their constitutional obligation, in the hope that the next president will be of their party,” Dershowitz wrote. He added that if Gorsuch were honest in answering a question about the Senate’s inaction on Garland, “he would be challenging the legitimacy of his own nomination.”
Last week the website Vox published a long essay by David Roberts in which he demonstrated the ways in which the political right has isolated itself from the mainstream, setting up an asymmetrical dynamic in which Democrats and the traditional media are playing by the old rules while Republicans and their favored media outlets exist in their own reality. The entire piece is worth reading. Unlike most such Trump-inspired articles, this one will hold up a year from now, even if Trump is no longer president.
But there’s one paragraph in particular that I think speaks to the problem that would be created if the Democrats chose not to filibuster Gorsuch after what the Republicans did to Garland:
The idea is that when political participants step outside the ring fence and violate some shared rule or norm, they are called on it by referees and must pay some penalty, reputational or otherwise. In this way, political contests are bounded and contained, prevented from spilling over into violence or illiberalism. That’s how democracy — indeed, any framework of cooperation among large numbers of diverse people — works. Institutions and norms provide structure and limits, the shared scaffolding of cooperation.
The Democrats are not likely to stop the Gorsuch nomination. All the Republicans have to do is invoke the so-called nuclear option and end the requirement that 60 votes are needed to end debate. The filibuster has no doubt outlived its usefulness anyway. It’s the product of a different era when there was broad agreement between the parties and the filibuster was rarely invoked. Mr. Smith left Washington a long time ago.
But a losing effort is not necessarily the same thing as a futile effort. In the case of the Gorsuch nomination, the Democrats need to act as referees, as Roberts suggests, and attempt to force the Republicans to pay a penalty. It won’t do for the Democrats to pound away at Gorsuch’s conservatism. No, they must bring up Garland and the way he was treated, over and over, and do the best they can at reminding the public of the damage done to our democracy by McConnell and his band of authoritarian thugs.