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.