Now that showdown time is here, it’s worth remembering that, for many conservatives, putting Neil Gorsuch (or someone like him) on the Supreme Court was always the whole ball game. Locking in an ideological majority at SCOTUS for a generation was the main reason they wanted a Republican in the White House, even if that Republican was Donald Trump. It’s also why they’ll grimly stick with Trucky McTrumpface even if he starts regularly hurling monkey poop at the cameras while singing Russia’s national anthem in pig Latin as Vladimir Putin looks on, because Ruth Bader Ginsburg is 84 years old and they know what their priorities are.
This just goes to prove that Republicans understand power better than Democrats do. When given the chance, Democrats are generally better at governing but that, unfortunately, is not the same thing. Liberals only push the Supreme Court panic button at election time and they don’t groom potential Justices anywhere near as systematically. Although an outfit calling itself the American Constitution Society does limp along somewhere out there where the blue states turn indigo and a Wikipedia entry counts as a major public-relations achievement, there’s no real liberal equivalent of conservatism’s mighty Federalist Society. Founded by square-peg Ivy League law students during Ronald Reagan’s first term, it’s been the GOP’s breeder farm ever since for jurists who are not just steeped in conservative orthodoxy but also impressively smooth customers when it comes to hiding their more extremist views.
Naturally, Gorsuch is very much in this ultra-poised and upright-looking mold. By Trump’s sandbox standards, he’s even a grown-up, responsible choice. On the merits, it would be hard to argue he’s unqualified for the job—you know, in the way Rex Tillerson, Betsy DeVos, Ben Carson, Rick Perry, Steve Bannon, Jared Kushner and Ivanka and Trump are all for theirs. (Bannon’s eviction from the National Security Council was a rare piece of good news this week.) Senate Democrats have done their best to make a case that Gorsuch is callous, no friend to women’s or LGBT rights and likely to favor corporate interests over citizens every time. So far as we can tell, all of the foregoing is perfectly true, but it simply means that Gorsuch is a Republican Supreme Court nominee. Who were they expecting, RuPaul?
On the other hand, Elizabeth Warren has a potentially incendiary point when she says “it’s just nuts” to confirm Trump’s SCOTUS pick when the FBI’s probe into Trump’s Russia connection could have results requiring Supreme Court adjudication. But Warren is looking down the road to a hypothetical future in a way the American public has never had much patience for. The belated discovery that Gorsuch apparently plagiarized some passages of his scholarly 2006 book on assisted suicide hasn’t gotten much traction either, partly because nobody can bear the thought of actually having to read it to find out if we’d care.
Virtually the only thing everybody in the Senate agrees on is that the nuclear option will be the start of a disastrous precedent.
Anyhow, we all know that it’s ridiculously nostalgic to think or hope his confirmation will be decided on merit. We’re witnessing the unlovely upshot of years—decades, really—of increasingly partisan cat-and-mouse games over judicial nominees, a duel that went into overdrive last year when Senate Majority Leader Mitch McConnell decided to keep vacant the late Antonin Scalia’s SCOTUS seat for the next administration by refusing to hold hearings for Merrick Garland, Barack Obama’s nominee. If Hillary Clinton had won, a moderate like Garland would likely have been confirmed in a twinkle before her inaugural to avoid a more liberal pick. But she didn’t win, and visions of triumph began to dance in the two condor eggs we call McConnell’s eyes.
As outrageous as his hostage ploy was, the Democrats aren’t entirely blameless in creating this situation. You could even say they started it 30 years when then-Senator Joe Biden successfully derailed Ronald Reagan’s 1987 nomination of the unappetizing Robert Bork, who not so incidentally was one of the Federalist Society’s guiding lights early on and still its favorite martyr. For that matter, Gorsuch’s tactic of resorting to evasive, noncommittal answers during his Judiciary Committee sessions, for which he was heavily criticized, was inspired by none other than St. Ruth Bader Ginsburg, who did just that at her 1993 hearing. It has been carefully imitated by pretty much every SCOTUS nominee of whatever ideological stripe since.
In 2013, it was the Senate’s Democrats—then in the majority—who trashed the 60-vote threshold for confirming judicial nominees, exempting only Supreme Court picks. To be fair, Republican obstructiveness blocking dozens of Obama’s candidates for unfilled judgeships may not have left them much choice, but they were rightly warned at the time they’d live to regret it. Now, as you’ve no doubt heard, if the Democrats’ filibuster of his nomination holds, McConnell is all but certain to unleash the fabled “nuclear option” to ram Gorsuch through on a simple majority vote.
Virtually the only thing everybody in the Senate agrees on, including the Republicans who will support the big blowup anyway, is that this move will be the start of a disastrous precedent. McConnell claims that this would be a one-time-only deal, but nobody believes him. Not only has the filibuster traditionally been the minority party’s firewall against irrelevance—no matter whether that minority is Republican or Democrat—but part of the point of the 60-vote threshold is to hedge against judicial nominees getting confirmed along partisan lines.
Not least because the similar 60-vote requirement for passing important legislation could be on the chopping block next, also at stake is the Senate’s distinctive character as a more deliberate and thoughtful bunch than those hotheads over in the House. “Benjamin Franklin is somewhere turning over in his grave,” Senator John McCain told the New York Times. “Why have a bicameral system?” But despite calling anyone who’d like to see the filibuster junked permanently “a stupid idiot,” McCain hasn’t indicated he won’t go along with junking it just this once.
What makes this a perfect standoff is that the Democrats would be all but obliged to filibuster Gorsuch even if he were RuPaul. Their newly activated base wants revenge for the theft of Merrick Garland’s seat, not its legitimization by docile acceptance of a Trump-appointed replacement. They also don’t want to see the Alpha Cheeto basking in a big win after his misbegotten healthcare bill’s train wreck. Meanwhile, McConnell needs to prove he can deliver the goods, at whatever cost to the system he purportedly serves.
The irony, as he no doubt knows, is that allowing the opposition to successfully block Gorsuch’s nomination would put the Democrats in a position where they’d pretty much have to approve whoever Trump sent up next. But the GOP’s base and Trump himself are unlikely to grasp that logic. They’d blame the Majority Leader instead for a defeat, and who wants to be the next Paul Ryan? Not Kentucky’s answer to The Office’s Dwight Schrute, that’s for sure. Maintaining his own power has always been McConnell’s most tenacious goal, and one reason he’s so good at it is that he’s never shown the remotest concern for what will become of the country as a result.