In all the news this week, including a late-breaking story from CNN last night that said, in their carefully chosen words, “The FBI has information that indicates associates of President Donald Trump communicated with suspected Russian operatives to possibly coordinate the release of information damaging to Hillary Clinton’s campaign,” it’s easy to forget that there were confirmation hearings for a Supreme Court nominee.
Judge Neil Gorsuch completed the third day of hearings on his nomination yesterday. As a choice for Associate Justice, he’s not the best, but he is qualified. Gorsuch is very, very conservative. He once dissented from a 2-1 ruling that was in favor of a worker who had the audacity to disobey company instructions in order to keep from freezing to death on the side of a highway. The press has dubbed this the ‘frozen trucker case’ and it’s worth readers looking into to get a better idea of Gorsuch’s temperament.
The case isn’t enough to disqualify him outright from the Supreme Court, but taken with the rest of his rulings, it’s more than enough for Democrats to have a clear conscience in not voting in favor of his nomination. However, just sitting on the sidelines and allowing an up or down vote on Gorsuch would be a surrender to the Republicans that I don’t think they have earned.
Let’s not forget. The only reason Gorsuch was nominated for Antonin Scalia’s seat at all is because Senate Republicans, led by Mitch McConnell, stole the pick from President Obama. When he nominated Judge Merrick Garland for the seat, McConnell and the Senate Republicans made clear that Garland would get no hearing, would get no up or down vote. It was an election year and the GOP gambled that they could wait out the nomination until the next president was in office — hopefully a Republican. Indeed, had Hillary Clinton won the election, they had tentative plans to continue to leave Scalia’s seat unfilled, possibly throughout Clinton’s entire term.
This was a gross abrogation of their duties as United States Senators. It was an attack on the legitimacy of a twice-elected president. In fact, it is a constitutional crisis in slow motion — yet another instance of late where the GOP violates the unwritten norms in our political system that allow the system to operate without being completely bogged down in partisan maneuvering. Well, McConnell opened this Pandora’s box, and the only way to close it again is to throw eight years of obstructionist policy back in his face.
Back during the Obama administration, whenever the president made a nomination, for any vacant position anywhere, McConnell used to be able to pick up the phone, dial up his Democratic counterpart, Senator Harry Reid, and whisper into the phone, “filibuster,” and that was it. The nomination was dead. In the Senate, 60 votes are needed to break a filibuster, and no party has had a majority like that in a long time, so just the threat of a filibuster was enough to kill nominations. Obama, Reid, and the Democrats understandably got sick of that, so while they still had a Senate majority, Democrats mustered the will to change Senate rules so that nominees could no longer be filibustered, with one gigantic exception. Supreme Court nominees can still be filibustered.
Reid didn’t even want to change the rules at all. The filibuster is as old as the Senate itself, and it’s a useful tool while in the opposition, as long as it is used with restraint. Filibustering every nomination that came before the Senate did nothing but paralyze the administration at the expense of the American people. It was a shameless power grab that was in opposition to the will of the voters, who, at the time, had voted for a Democratic majority in the Senate. Reid knew that rule changes have lasting effect — that rules advantageous while one is in the majority become detrimental when inevitably one finds oneself back in the minority. McConnell, for his part, should have realized that pressuring Democrats to the point that rule changes were their only option to conduct the business of government was going too far. He was risking blowback. Well, it’s time for that blowback.
Now that Republicans are in the majority and have the presidency, it is paramount that Democrats use the same obstructionist tactics against any of President Trump’s Supreme Court nominees. Senate Minority Leader Charles Schumer should mirror McConnell’s behavior. He should threaten a filibuster, and do all he can to hold Democrats in line as the enraged Republican beast shouts and writhes over the injustice of it all. Schumer should hold and hold and hold until the GOP gives up and banishes the filibuster for Supreme Court nominees. It was Senate Republicans that weaponized the filibuster, and if the Democrats shy away from using it to retaliate for McConnell’s unprecedented obstructionism, then they are only giving the GOP permission to use the same tactics when they find themselves in the minority once again. In order to ensure future nominees are given a fair hearing, this current nominee must face the same fate as the last, or the rules that allow such nominations to rot need to be changed. It is crucial that the GOP sees there is a real cost to their anti-democratic policies, and no reward. It’s only the future operation of the republic that’s at stake.
Addendum: Not long after I published this article, Senator Schumer announced that the Democrats will filibuster Judge Gorsuch. I would like to think that Chuck was sitting at his desk with a cup of coffee, reading this article, and deciding that yes, indeed, this Missile Test fellow is right. I know better, though.