Gorsuch nomination a lose-lose for the Democrats
President Trump just handed the Democrats a lose-lose decision point by nominating Judge Neil Gorsuch for the Supreme Court vacancy created by the untimely death of Justice Scalia. It is a political masterstroke. And not just because Gorsuch looks like a Central Casting version of a justice, and not because he is smart, articulate, and supremely qualified.
And not even because he disarmed the Democrats by saying a good judge doesn’t always like the outcome of his legal reasoning. The Dems always look and find “victims” of some decision of a Republican judicial nominee and state therefore that he or she will not protect women, minorities, Muslims, etc. I look forward to Judge Gorsuch explaining this in the hearings.
No, I think this is a masterstroke for entirely different reasons from Gorsuch’s obvious personal appeal and superb qualifications.
First of all, keep in mind that the stakes in the Gorsuch nomination do not include alteration of majority control. A conservative justice would replace a conservative justice if he is confirmed.
Second, remember that the filibuster is the sole legislative weapon available to the minority Democrats to halt this and any subsequent nomination. If they use the filibuster to try to stop Gorsuch, they risk Republicans using the so-called nuclear option and ending the filibuster entirely for the Supreme Court. They are in no position to object on principle, having used the nuclear option themselves to enable President Obama to fill the district and appellate courts with liberal-left judges.
The most pressing concern of the Democrats is stopping Trump’s next nominee, in the expectation that another vacancy could be on the way, either through mortality or resignation. Justice Kennedy, who mentored Gorsuch as his law clerk, is the primary candidate to announce his retirement, and after introducing his protégé to his peers on the Court, he might well feel that he has achieved his highest goal by producing a brilliant disciple to carry on the wisdom he has imparted.
[A brief digression on mentor-protégé relationships. As an organizational sociologist and Harvard Business School professor, I studied this topic closely and discovered that mentoring is one of the most deeply satisfying professional and personal activities of a career, particularly among high achievers. For many organizations, mentorship is a way of passing along wisdom that cannot be codified in a formal manner – among many other qualities and a few drawbacks.]
Senate Democrats have every reason to fear Kennedy’s replacement by a more conservative appointee. They have even more to fear if Justice Ginsburg vacates her seat. It would swing the court to a reliable conservative majority. So it would be in their interest to preserve the filibuster weapon for use in a future nomination fight. In fact, if they didn’t invoke the filibuster this time, it will add legitimacy to their use of it in the future. “See, we were reasonable back then, but now President Turmp is remaking the court. This is exactly why the filibuster exists and must be honored.”
But if they protect the filibuster, the base will be apoplectic. And they do not compromise. They will demand a filibuster. And they will threaten to primary any Democrat senator who does not support a filibuster.
So what does Chuck Schumer do? He can call for a filibuster and provoke the nuclear option. That would leave the door open for Armageddon, in the form of a majority that might leave abortion up to the states and undo decades of judicial creation of rights from the penumbras or other made-up sources, but certainly not in the text of the Constitution.
But what if a call for cloture succeeded with the help of eight Democrats? They would most be likely Senators Manchin and Heitkamp, plus six from the eight other Democrats up for re-election in states that went for Trump: Nelson, Connelly, Stabenow, McCaskill, Tester, Brown, Casey, and Baldwin. Baldwin certainly is hopeless on this issue, but there is at least the possibility of a cloture vote succeeding, without the need to invoke the nuclear option.
But that would infuriate the base and risk primary opponents with money.
Either way, the Demcorats lose. Putting your opponent in a lose-lose decision is an effective way of winning, something President Trump likes to do.