The ramblings of a wandering mind

Tuesday, April 4, 2017

The decision to filibsuter Judge Neil Gorsuch is the wrong one...for Democrats

I say this as a Republican but would have said the same if I were a Democrat: Democrats filibustering Gorsuch is the stupidest thing they can possibly do - even when viewed exclusively in light of their own self-interest. Neil Gorsuch was picked in the hope of getting 60+ votes in the Senate and by all accounts, he should have. For context, when he was nominated on the 10th Circuit court of appeals in 2006 where he now sits, his nomination was approved by a voice vote and only 1 person showed up at his hearing - Senator Lindsey Graham of South Carolina. The issue is that notwithstanding the Democratic filibuster, Judge Gorsuch will be confirmed (perhaps as early as this week) and the Senate's rules/ norms will be changed. That now seems to be a done deal. The real issue is what comes next? 

No one knows when the next vacancy will come about on the Court but based on age, the ones likeliest to step down (either through death/ ill health) would be Justices Ginsburg (aged 84), Kennedy (80), or Breyer (78). Justice Ginsburg literally is at one end of the spectrum when it comes to being a liberal justice, Justice Breyer isn't significantly better, and Justice Kennedy - well he is the true swing judge on this present court. Now with the rules for confirming SC justices changed, the President will have no incentive to appoint a "mainstream" conservative like Judge Gorsuch. Instead he could appoint Judge Pryor who was reputed to be on the shortlist and is on record as having said that Roe v. Wade (1973) was the “worst abomination in the history of constitutional law”. (http://www.salon.com/2017/01/18/trump-meets-with-supreme-court-candidate/) In that case, even if an extreme nominee loses the support of a few Republicans (as happened with the Betsy DeVos nomination), DJT can get that nominee through. (Democrats, pls. check what the 2018 calendar for Senate races looks like before you comment). And therefore, while it is by no means certain that one of the justices will die/ retire in the next 3 years, it could happen. And while, a second term for DJT looks unlikely, stranger things have happened and esp. if DJT stays on until 2024, he will assuredly have 1 and perhaps even 2 or 3 vacancies to fill and the court will be packed with solid conservatives for a generation, maybe more. :)

Those are the key arguments. How about the other arguments such as - this will energize the Democratic base? Well - it doesn't look like the Democratic base is up in arms against Judge Gorsuch - e.g. there was not a single protester (Code Pink or otherwise) during three days of hearings and that needs to be compared with the protests against Sessions or DeVos during their hearings. 

What about the arguments that Democrats don't want to hand DJT an easy victory or this is retribution for Merrick Garland? Well - when in 3 or 5 years, the Court decides on another case as massive as Sebelius vs. NFIB (the original Obamacare case), and it goes down as a 5-4 because of conservative justices appointed under DJT, then the question of having handed DJT a victory in spring of 2017 will seem very quaint and would have faded from public memory. 

Finally, Merrick Garland - what about him? Yes - what happened to him wasn't good but we played politics.... and won. You cannot take politics out of politics, let's just say that. Frankly, President Obama could have appointed him for either of his first two vacancies but he chose not to - in order to pick a more ideological justice like SS and so Judge Garland was the sacrificial lamb in the end. The real question is not whether what happened to Merrick Garland was fair or not (it wasn't) but 1) whether Democrats would have behaved any differently if RBG had died in President Bush's last term in office and there was a Democratic-controlled Senate? 2) Also, would filibustering Judge Gorsuch achieve the Democratic party's goals of preventing him from being seated (no) and 3) whether it would give them sizable political benefits? (no, again). In contrast, Republicans were successfully able to prevent Merrick Garland from coming on the Court and the thought of picking the next SC justice let a lot of Republican voters to hold their nose and vote for DJT. Neither are true here.

Now how about Republicans - couldn't abolishing the filibuster come to bite them in the butt? Well, not really. If and when the stars align again to give the Democrats, the Presidency and the Senate, they will get to appoint someone of their choice. But that's OK - the justices appointed by Democratic Presidents have never been viewed as swing from what I can tell; no one waited in bated breath for how Justice Sotomayor was going to vote on Sebelius vs. NFIB - (repeal of Obamacare for others); in that very important case, the swing justices (based on oral arguments) were Justices Roberts and Kennedy and in the end, Chief Justice Roberts proved to be the swing vote. In fact, it says something about both the parties and the judges, that the only ones who have been viewed as swing justices on the court in its last 15-20 years have been Republican appointees - earlier, Justice Sandra Day O'Connor, most recently, Justice Kennedy, and now, in a few rare instances, Chief Justice John Roberts. (I am not even including Justices David Souter and John Paul Stevens - both Republican appointees - who let's just say, surprised the Presidents who appointed them, and not necessarily in a very nice manner). So it is not as though, the views of any Democratic appointee on the Court will be a surprise; we know very well from history what we will be getting.

So all in all - as a Democrat, I would have been very concerned and disappointed that the filibuster to Supreme Court nominations would fall by the wayside, whereas as a Republican, I would be quite pleased and elated at future prospects, even if I were somewhat disappointed in the Senate becoming a body devoid of bipartisanship.