Democrats are fighting a losing battle. The Senate in a couple of days will surely confirm Neil Gorsuch as the newest justice of the Supreme Court. But it’s a battle that nevertheless must be fought.

Let’s first dispose of the arguments for not opposing Gorsuch.

Traditionally, a president is presumed to have a right to name Supreme Court justices of his own choosing, a right that the Senate challenges only under very exceptional circumstances.  I’ve always been dubious of that presumption. There’s no basis for it in the Constitution, which only says that the president names justices with the advice and consent of the Senate: the Constitution is silent on the conditions under which the Senate might withhold its consent. To my mind, the SCOTUS is a political institution, so if senators consider a nominee politically obnoxious, why shouldn’t they oppose him? (The myth that our judiciary is somehow above politics, that SCOTUS justices must just interpret the law, including the Constitution, untainted by political or ideological bias, is nonsense.)

But let’s leave my objection aside. Even if we prefer to go with the presumption of the president’s prerogative to pick his justices, it shouldn’t apply to Gorsuch.   There wouldn’t even be a vacancy on the Supreme Court now if Senate Republicans hadn’t already trashed the president’s prerogative when they refused to consider President Obama’s choice for this vacancy, Merrick Garland. Since this is effectively a stolen vacancy, the Democrats have every right to demand restitution. As I have argued, they would be well within their rights to oppose any Trump nominee who isn’t Garland. Short of that, and as a practical matter, they are more than justified in demanding that Trump make partial restitution of the theft by nominating a jurist who represents the same spirit of accommodation that Obama displayed in nominating the moderate Garland. But Gorsuch is about as far from being a moderate as you could imagine. By one reckoning, he would be the second most extreme justice on the court, with only Clarence Thomas to his right.

So, in principle, there’s nothing wrong with Democrats mounting an all-out opposition to Garland, including the use of the filibuster, but is it wise? Advocates for a more accommodating Democratic stance point out that filibustering Garland’s nomination will surely induce the Republicans to resort to the “nuclear option,” enabling the majority to confirm a Court nominee without the practical necessity of gaining 60 votes to overcome a filibuster. So, the argument goes, the Democrats will have no chance of mounting an effective opposition to future possible Trump nominees, whose confirmation would critically tip the balance on the Court. Instead, forgoing the filibuster on Gorsuch, to preserve it for future battles, will give the Dems “some slight chance” (per today’s NY Times editorial) of winning some of those battles. I find this line of argument unpersuasive. The Times has to admit that the chance of the Dems winning future Court battles is slight because there is little reason to believe that the Republicans won’t be just as willing to go nuclear in the future as they are today. There are strong reasons for opposing Gorsuch now, which I’ll get to in a moment. To soften that opposition in the interest of preserving some slight chance of victories in an uncertain future just doesn’t sound like a good tradeoff to me.

Gorsuch, of course, is eminently qualified, by virtue of intellect and experience, to serve on the court. The reasons for opposing him—let’s say it unabashedly—are political. As noted, he is an extreme right-winger. With Trump in the White House, it looks like the current right-wing majority on the court will reign for another generation.   Gorsuch, a relatively young man, will serve to anchor that majority. Progressives cannot simply watch that happen without protest. And protesting they are, vigorously. The one silver lining to emerge from Trump’s election is the explosion of activism it has provoked on the left. The Democratic base clearly wants their senators to oppose Gorsuch by all means possible. To disappoint that expectation would be politically stupid. The Democrats’ Senate leader, Chuck Schumer, understands this. He understands that if the Trump disaster is to be effectively fought and ultimately overturned, it is essential to preserve and build on the energy and enthusiasm the progressive grass roots has shown in its abhorrence of Trumpism. Yes, choosing to fight a losing battle is to engage in symbolism, but symbolism is important in politics. All-out opposition to the Gorsuch nomination is a way for Congressional Democrats to signal to their base that they are determined to wage an unrelenting fight against the frightening new regime in Washington.   I, for one, really want to know that.




  1. Lisa Lipman April 5, 2017 at 4:31 pm

    It is also important for people to call or write to their senators; in NY this means thanking Schumer and Gillibrand for their leadership. Don’t underestimate this, and it takes all of two minutes to do. Just saying.

    • tonygreco April 5, 2017 at 7:29 pm

      Good advice

  2. Art Schmidt April 5, 2017 at 6:20 pm

    Maybe more than just symbolism. Maybe an actual political upside to making the Republicans be the ones to go nuclear. If Ginsburg can keep breathing until January 2021, and if the Dems can take the Senate by then, President Merkley can fill her seat with a bare majority. All we’ll need from red-state senators is a yes vote on the nominee, not a vote to nuke the filibuster.

    • tonygreco April 5, 2017 at 7:34 pm

      Good point. I might have added that I’m no fan of the filibuster–it’s an anti-democratic institution with an unsavory history and in recent decades used much more by Republicans than Democrats. Good riddance.

      And I will add that I am also a big fan of the junior senator from the great state of Oregon. I hope he is as ambitious for himself as you and I are for him.

      • Peter Sepulveda April 5, 2017 at 10:49 pm

        Is the filibuster really anti-democratic? I know that it has been used in the past for odious purposes. Can’t it be construed as protecting the rights of the minority in the face of an oppressive majority?

        • tonygreco April 6, 2017 at 1:08 pm

          Protecting the minority against oppression or abuse is of course the traditional argument for the filibuster. But democracy, after all, is usually understood to mean majority rule. Yes, that raises the concern that minority rights might be trampled. But the ability of just 41 out of 100 senators to nullify the preferences of the other 59 is also, to my mind, an abuse of power. So, we have a basic dilemma of democracy, with no simple solution. In practice I don’t think the filibuster has ever been used as a protection against genuine oppression–it’s come to be used routinely as a means of blocking the will of the majority.

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