Judge Gorsuch And Mutually-Assured Destruction

Colorado Senior District Court Judge John Kane says that Judge Neil Gorsuch is a good judge. The two of them may disagree about many of the pressing policy issues of the day, and hold different values on many issues, but Judge Gorsuch is smart and, as Judge Kane emphasized during his testimony to the Senate Judiciary Committee on Day 4 of the hearings, a judge of integrity.

Even the New York Times can’t muster an argument that Judge Gorsuch isn’t fully qualified to be an associate justice, and they’ll say anything.

What’s enormously hard for the deeply hysterical to grasp is that President Trump isn’t going to nominate someone for the seat who meets their approval. Indeed, even if Trump nominated Thurgood Marshall, they would find reasons to hate him and shriek about how he’ll destroy the fabric of progressivism. Most people realize how politics deranges perspective, and appreciate the Senate Show for what it is, a necessary performance to sate the lust of ignorant political constituencies.

But what comes next? There is no doubt that the Republican-controlled Senate’s refusal to give Judge Merrick Garland a hearing was hypocritical and destructive. The desire for payback is strong, the hyperbolic rationalizations notwithstanding. Trump didn’t “steal” a seat and Gorsuch won’t be illegitimate. The Republicans pulled a shrewd gambit and got away with it because the Advise and Consent Clause lacked a mechanism to force the Republicans to fulfill their constitutional duty. It was disgraceful, but there was no means to prevent it.

The rules of the game will now get played again, as Sen. Chuck Schumer, Democratic Minority Leader of the Senate, has announced that he will filibuster Gorsuch’s confirmation. This will put a series of rules into play.

The best rationale for the filibuster, however, is the outrageous behavior of Mr. Schumer’s Republican colleagues, who refused even to consider Judge Merrick Garland, Mr. Obama’s highly qualified choice to fill the vacancy created by the death of Justice Antonin Scalia, in February 2016 — solely to hold the seat open for a conservative judge.

If all Republicans voted to end the filibuster of Judge Gorsuch, they would still need the help of eight Democrats, an unlikely scenario. And it’s hard to imagine that they would agree to a different nominee.

They have a third option, of course: changing the Senate rules to eliminate the filibuster for Supreme Court justices, thus ending debate — and confirming Judge Gorsuch — with a simple majority.

This is what’s referred to as the “nuclear option,” changing the rules, which only requires a majority vote, to eliminate the filibuster for a Supreme Court justice, just as then-Majority Leader Harry Reid did for the Democrats on lower-court Article III judges. This begets a spiral of finger pointing as to who did what to whom first to be blamed for the destruction of all we hold dear.

We’re now sufficiently awash in lies and hypocrisy that it doesn’t matter who started the fire. The sides have been chosen, the lies internalized and the adherents of their respective religions ready to do as their high priests command.

There is little to be done should the Republicans use the nuclear option to confirm Gorsuch on a straight vote. Elie Mystal has raised the most imaginative threat, court-packing when next the Democrats hold the presidency and the Senate, but it’s so radical and far-fetched as to be impossible to take seriously. An excellent effort, but the key to a good threat is credibility. Ain’t nobody buying.

Even the inherently evil Bill Otis has miraculously demonstrated the capacity for clear thought on this one:

But I digress.  Gorsuch is going to be confirmed; the only question is how.  Given the Democrats’ consternation, there are only two realistic courses.  One would be for the Democrats to acknowledge Gorsuch’s excellence, accept that they don’t pick the nominee, and either abstain or vote to confirm him (this is, for the most part, what the Republicans did with Ginsburg, Breyer, Sotomayor and Kagan).  That would be the best thing for the country and, in the long run, for the Democratic Party.  It would also preserve the filibuster, a controversial artifact not without its downsides, but also not without its virtues in encouraging deliberation and at least some attempt at reaching consensus.

The other  —  the one that’s actually going to happen  —  is this:  The Democrats continue to be furious about Trump’s surprise election and mount The Resistance; they dig in even by opposing an obviously qualified candidate (and the best they’re going to get for the next four years); the public correctly sees that this is just dead-end partisanship; Leader McConnell, understanding the public mood and the importance of the Court (and being able to count to 52), abolishes the filibuster, using the model graciously provided by his Democratic predecessor, Harry Reid; and the filibuster goes bye-bye.

At that point, the Democrats will have lost  —  or, more correctly, will have kicked away  —  the opportunity to block a more dyed-in-the-wool conservative of the sort that is now sure to be on the table for any vacancies over the next few years that come up when Justices Ginsburg, Kennedy and/or Breyer leave the Court.  And filling any of those slots with a hard core conservative (not that I would oppose it, mind you), is going to be far more consequential for the direction of American law than filling the seat of Antonin Scalia with a mainstream conservative like Neil Gorsuch.  Far more consequential  —  and now, courtesy of Sen. Schmuer’s tantrum, far easier.

Much as the handful of Democratic show ponies (as opposed to the Republican show ponies) on the Senate Judiciary Committee has used their capital to convince their groundlings that Gorsuch is evil, will end abortion, restore slavery and make all truckers freeze to death, he’s a fine, moderately conservative-leaning judge. No one knowledgeable about law and the judiciary thinks anything other than he’s pretty much a slightly more conservative version of Garland, who was also a fine, moderately liberal, judge.

There are some facts that need to be accepted, no matter how sad they make you. Trump is president. Even if it turns out that there was traitorous Russian involvement, he will still be president unless and until he is impeached. Contrary to what Mr. Sulu tells his fans, there is no null and void clause in the Constitution. If Trump goes, Hillary will not be installed in his place. And while president, no matter how he got there, Trump gets to nominate a Supreme Court justice, just as Obama did but for the Senate Republicans’ disgraceful treatment of their duty.

And even though the Senate Republicans’ handling of Garland was a disgrace, Trump was still elected. The place for payback was at the polling booth. It didn’t happen.

The question confronting Americans now is whether we want to continue the death spiral of doing anything and everything to undermine the structure of government “because they did it first,” or we want to end it. Ironically, using Gorsuch as the poster boy for evil conservatism that must be stopped no matter what is as absurd as electing a president who lacked any of the competencies needed to perform the job.

As even Otis realizes, the question presented is who will be the stupidest party. Ron White says “you can’t fix stupid.” Will he be proven right? If the stupid doesn’t end, then there will be nothing left of this great experiment except for the finger-pointing.

31 thoughts on “Judge Gorsuch And Mutually-Assured Destruction

    1. SHG Post author

      Or a grown-up from each party steps forward to spanks the little shits, we all shuffle our feet, say we’re sorry, hug and put the good of the nation ahead of our religion. Nah.

  1. Scott Jacobs

    There is no doubt that the Republican-controlled Senate’s refusal to give Judge Merrick Garland a hearing was hypocritical

    Which nicely bookends the hypocrisy of Democrats demanding a nominee not be given a vote within the last year of a President’s term.

    Ain’t politics grand? I know it makes me feel good.

  2. Billy Bob

    There’s a fourth option: The Dems conspire with the Republicants to confirm, providing by pre-arrangement that Gorsuch hand over the associate’s position to Garland upon confirmation of the former. “Such” a solution should satisfy the greatest number senators, and by implication, the “land” at large. (As previously suggested here.) Compromise! Isn’t that the way govt. is supposed to work?

    Otherwise, we have never-ending internecine warfare. That is for ant colonies, not us human beings. Can’t we all just get along? (Rodney King.) Or, how about this: Gorsuch shares the chair with Garland, with or without adding an additional vote to the august body of infallible finalists in the Black Robe Contest. This is torrable, torrable, torrable. But amazing to watch! Schumer is going thru the motions, but wasting his breath. The Orange Man will not be impeached, but he will be ridiculed mercilessly, by the Left and the Right. Just what the doctor ordered! At the end of the line, nothing changes. It’s deja voodoo all over again.

      1. Billy Bob

        Back in our day, some of us were RITAs = Resisters In The Army. (We opposed an illegal and unlawful war of aggression on the opposite side of the world where we had no busyness. While wearing the uniform. It was a risky choice there. Lives were lost, millions of $s wasted. The habitat destroyed, etc. Can U say McNamara?)
        It was crazy then. It’s crazy now. Nothing changes; it’s a crazy country/nation. The Constituition is just a piece of paper under climate-controlled glass somewhere in D.C., covered with hen-scratchings which everyone pledges allegiance to, while violating when nobody is looking,… or flagrantly in broad daylight by those with “qualified immunity”.

        Does anyone remember Sen. Joe McCarthy and the Red Scare of the late Forties and early Fifties? ( (We do.)) It does not get any crazier than that, and Eisenhower either (a) sat it out, or (b) rose above the fray, depending upon your *point of view*. It ended badly for McCarthy who died an alcoholic, albeit not fast enough. You can bet TrumpMaster would not have tolerated any such *shenanigans* Or did we get it backwards?!? Perhaps it’s just another *game show* which keeps some people busy and others–like us–entertained?

        1. SHG Post author

          We survived McCarthy. We survived Nixon (or how I was McNamara’d into submission). We can survive this, too, as long as we don’t destroy the systems of governance that sustains us. All the crazies on both sides (do you know them from the meetings, Bill?) want to destroy the institutions to win their war because they lack the institutional memory that we will need those institutions should we return to sanity.

          1. Billy Bob

            Thanx. I enjoyed that. Neil Young too, of course. Don’t listen to that protest music anymore. Am into rap, hip-hop and heavy-metal now, occasionally Berlin techno. And always, Amerikan country and The Blues. Ha.

            Meetings! What meetings? You mean Ay Ay meetings? We graduated in 79.
            That was painful. Hope we made the right decision?
            Forty years later, we own the micro-brewery. Correction: The micro-brewery owns us! There’s some really good sh!t out there today, but the doc only lets me have two drinks a day. How crazy is that? Two beers gets you nowhere, certainly not in Munich!

            For the record: We gave up MaryJane shortly after graduating from AyAy. Guess what? Now it’s *legal* in our state. Where was the legality when we kneeded it?!? This all totally nutso. We don’t understand anything any more! Oh hi, Mr. Leary, we thought you were dead, you and Elvis! Nixonistes is dead too, thank you Jesus. “Those were the days, my friend,…. we thought they’d never end.” But they did, and now we’re teary-eyed.

            Now back to work; we have places to go and people to meet. Bye the way, that foray into Tennessee was *awesome*. Really enjoyed that thread where CLS responded to every comment. A first!

  3. Marc Whipple

    “Elie Mystal has raised the most imaginative threat, court-packing when next the Democrats hold the presidency and the Senate, but its so radical and far-fetched as be impossible to take seriously”

    “You keep using that word. I do not think it means what you think it means.”

    The Senate eliminating the filibuster (even for lower court judges) would have been so radical and far-fetched as to be impossible to take seriously a few decades ago. The Senate outright refusing to consider a candidate would have been so radical and far-fetched as to be impossible to take seriously a few years ago. The election of Donald God-Help-Us Trump was so radical and far-fetched as to be impossible to take seriously *less* than a year ago. The idea that the entry of United States citizens would be challenged at the border was so radical and far-fetched as to be impossible to take seriously less than a few *months* ago.

    I’m sorry for harping, but I want to make my point clear: the End Times are here. Nothing is so radical and far-fetched as to be impossible to take seriously. The system is in a nose dive and gaining speed. The wings will soon come off and it will go purely ballistic. It is going to shatter and have to be rebuilt from the frame out.

    Now, “End TImes” is a bit much, I admit, and hopefully enough pieces of the frame will survive that we can rebuild the system in a substantially similar way. But I don’t think there’s enough time to pull up. It’s going to be either a very, very rough landing (my hope) and a total rebuild, or an outright crash.

    Or I could be wrong. I really, really hope I’m wrong. Sadly, my experience has been that when I really, really hope I’m wrong, I’m usually not wrong.

  4. Charles

    I agree that this is all a setup to force the Republicans to eliminate the filibuster. What’s odd is that the filibuster is the most powerful tool any senator has available to them. Getting rid of that makes Senators little different from members of the House. Just one vote among many, majority rules.

    It also seems extremely short-sighted, as if we never could have another Abe Fortas nomination (24 Republicans and 19 Democrats voting against cloture, with 12 Democrats absent—thereby preventing a vote on a Democratic nominee).

    1. SHG Post author

      Trying to explain how two-way streets work to the deeply passionate is like trying to teach a pig to sing.

      1. Marc Whipple

        Internet wisdom:

        “I never thought leopards would eat MY face,” sobbed the woman who voted for the Leopards Eating People’s Faces Party.

  5. Kirk Taylor

    The intelligent Democratic strategy is to realize that they have the moral high ground to try to make Trump’s court nomination window 3 years (increasing the possibility that the liberal walking dead justices survive to the next election). If they reserve the filibuster until the last year of Trump, they can argue that they are simply agreeing with the Republicans that an imminent election precludes nominating a new justice.

    1. Charles

      Yes, but making that argument via filibuster is a lot harder than doing so via bottling the nomination up in the committee like the Republicans did with Merrick Garland. The Democrats would have to win the Senate in 2018 to give themselves that option in 2020.

      1. SHG Post author

        Plenty time for the two parties to out stupid each other between now and then, but since that changes by the hour, planning for control by being the least stupid party at some critical moment in the future will be remarkably difficult.

  6. Alex Stalker

    The voters have demonstrated they will reward politicians for acting like children, and punish them for acting like adults. The time to fix it was during the election, and the electorate failed. Now the politicians all have incentives to Burn It Down, because the last election showed them they will be rewarded rather than punished for doing so.

    If you want elected officials to act like adults, then the voters have to vote for adults.

    1. SHG Post author

      The last election offered no viable candidate for most Americans. They chose the uncertainty of Trump over the certainty of a Clinton. We can never be sure what would have happened had it gone the other way. The voters didn’t reward Trump. They rejected Clinton.

  7. Charles J McCarthy

    I would like to see a real filibuster rather than the fake filibuster, where Senators are forced to speak to maintain it. I don’t know what that would do but it might change how that Senate tradition pans out.

    1. SHG Post author

      Way too much effort for such an august deliberative body. But it would be fun to watch them read names out of the phone book like in the old days.

  8. Etc.

    I’m guessing that the Dems are only doing this because they have the luxury of being in the minority and knowing that it won’t work. What possible advantage can Schumer see in blocking this nomination, were he somehow able to succeed? My guess is that whoever the replacement would be would look a lot less like William Brennan and a lot more like Robert Bork. As a Democrat, the fact that Trump would nominate a moderate like Gorsuch seems like a gift.

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