So it’s been two days since Judge Neil Gorsuch was appointed to inherit Mitch McConnell’s stolen property, i.e., the ninth seat on the Supreme Court. Apparently, I was not alone in offering unsolicited strategic advice to Senate Democrats. Here are some examples from more visible analysts, with paraphrases of their advice followed by my assessments. (I’ve broken the original post into smaller, more digestible chunks.)
Steven Pearlstein (Washington Monthly): Obstructing Gorsuch is bad because it undercuts the Democrats’ image as the party that actually cares about governance, as well the party’s claim that the Supreme Court needs nine justices to function effectively. It also will induce wavering Republicans to side with their party in the face of partisan obstruction, instead of defecting from Team Trump on issues where Democrats might be able to garner their support. And even if a blockage forced Gorsuch’s withdrawal, the result would be a nominee whom Democrats would like much less. Rather than obstruct, Democrats should condition their shelving the filibuster on the adoption of a resolution that would bar Trump from filling any vacancies that might occur during the last year of his term. Republicans could demonstrate that their justification for blocking Merrick Garland wasn’t spurious and self-serving, and Democrats could still voice their opposition to Gorsuch by voting against the nomination.
- The argument about preserving the brand has some merit, but the party has a greater imperative right now when it comes to brand association. The Democratic Party has the image of a group that brings textbooks to a gunfight and can’t figure out why the folks with the guns keep winning. The party base is demanding payback for what happened to Garland, and given that priority, it will not treat full-tilt opposition to Gorsuch as indicative of the party’s lack of interest in governance.
- Treating Gorsuch as business as usual will earn Senate Democrats approximately zero votes on Obamacare, environmental protection, or any other policy priority. Republican senators have more much to fear from primary challenges, especially given their popularity ratings relative to Trump’s, than they do from failing to extend an olive branch to their Democratic colleagues.
- As for the proposed alternative to the filibuster, why would the Senate of 2019 feel compelled to honor a resolution passed in 2017, especially if the Republican majority were to grow after the 2018 election? The Senate could simply pass a new resolution, and Democrats would have no leverage to stop it. And if Senate Democrats think that Mitch McConnell and Orrin Hatch behaved disreputably in stonewalling the Garland nomination, why would they trust them to uphold the proposed deal?
Garrett Epps (The Atlantic): He’s agnostic on whether Democrats should filibuster, but he does think their (and Republicans’) questioning during the hearings should center on Gorsuch’s commitment to democracy in the face of the Trump administration’s attacks on it. Topics to be featured would include due process protections for immigrants; protections for free speech and free press in times of crisis; restraints on executive power; and the dividing line between permissible voting regulations and voter suppression.
My assessment: Whether or not Democrats filibuster, they will not possess the power to prevent hearings. So why not devote the hearings to something meaningful, given the present climate? The lines of inquiry posed by Epps will provide greater insight into Gorsuch’s outlook than would the tired two-step over abortion, where senators can’t ask directly about Roe and nominees won’t answer forthrightly. (It’s not as if we don’t already know Gorsuch’s position on Roe.) They also allow for senators to move beyond the cliched and not-terribly-informative debates over judicial activism and judicial restraint. Most important, they enable a discussion that properly places legal questions in a political context, but without defining that context predominantly as partisan.