Neil Gorsuch may get confirmed to the Supreme Court. It shouldn’t, however, be for lack of a fight from Democrats.
There’s an upside to every possible fighting scenario. The only scenarios with a downside seem to be if they don’t fight.
Here’s how this could play out.
1. The Senate makes the Democratic Party filibuster
Gorsuch needs 60 votes to overcome a filibuster without the Senate using the nuclear option. This is why Republicans are trying to get Democratic Senate members to approve Gorsuch. They’re threatening to use the nuclear option, and we’re seeing statements like this from Lamar Alexander:
Filibustering to death the Gorsuch nomination — or any presidential nomination, for that matter—flies in the face of 230 years of Senate tradition. Throughout the Senate's history, approval of even the most controversial presidential nominations has required only a majority vote.
Senate decorum? Are you kidding me?
Senate decorum went out the window when Republicans refused to vote for an entire year on Merrick Garland, President Obama’s nominee.
If Democrats in the Senate have to filibuster, it’s a great opportunity for them. They get free publicity and they can keep bringing up 1.) Merrick Garland, and 2.) the ongoing FBI investigation of the president and his connections with Russia.
Republicans have already shredded any Senate rule decorum, so it’s an empty threat.
2. Senate Republicans invoke the nuclear option
Republicans now have the power to use the so-called “nuclear option” in the Senate and confirm Gorsuch with a simple majority. They are threatening to do this if Democrats don’t join them.
If this is how it’s going to be, then let them.
Democrats should use the opportunity to talk about how Republicans are undermining democracy—and Republicans will own any future terrible Supreme Court decisions.
Don’t vote for him and then let Republicans of the future argue that he had bipartisan support. Chief Justice John Roberts was confirmed with bipartisan support (because he played the game of not talking about his judicial views) and later went on to be the decisive vote in the Citizens United decision.
Similarly, Gorsuch is a corporate candidate who is being backed by a $10 million dark money campaign. When asked about this by Sen. Sheldon Whitehouse, Gorsuch equivocated:
Sen. Sheldon Whitehouse: Is it any cause of concern to you that your nomination is the focus of a $10 million political spending effort and we don’t know who’s behind it?
Neil Gorsuch: Senator, there’s a lot about the confirmation process today that I regret.
In all likelihood, the money behind Gorsuch wants more favorable corporate rulings. Let Republicans own this.
3. Democrats come together with Republicans to nominate Gorsuch
It’s hard to see why Democrats would do this but let’s suppose they “come together” with Republicans because they feel he’s a good candidate, or they’re worried about winning in a state won by Trump.
Are they more or less likely to win re-election?
You’re not going to win over the base of the Republican Party no matter what you do. Many Republicans these days are despised by “the base.” So there’s no sense in working to win these people over.
Independents are looking for strong alternatives.
Does being a “weak Republican” look strong? As many GOP hardliners say, why vote for Republican-lite?
Even in states won by Trump, politicians would be better off taking a principled stand. Here’s what Mitch McConnell said about Merrick Garland when he came up for a vote:
The American people are perfectly capable of having their say on this issue, so let's give them a voice. Let's let the American people decide. The Senate will appropriately revisit the matter when it considers the qualifications of the nominee the next president nominates, whoever that might be.
A similar approach regarding the Russia investigation seems logical. Something like:
With the President under investigation for his ties to Russia, it’s critical that the Supreme Court remain a check on his power. The Senate should revisit the matter at such time as all pending investigations are resolved.
If Republicans want to use the nuclear option, it’s on them.
Democrats, however, should at least fight and make them own their decisions. If Democrats fail to fight, they look weak and give credence to the “both parties are the same” nonsense.
David Akadjian is the author of The Little Book of Revolution: A Distributive Strategy for Democracy (now available as an ebook).