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Nonsense in the Senate

Judge Neil Gorsuch is a smart, literate, conservative judge. His previous rulings and writings show a mix of decisions, primarily favorable to conservative sentiments (e.g. the Hobby Lobby decision), but sometimes to liberal ones (e.g. against disproportional use of force against a schoolchild, against police “knock and talk” rights). As far as conservative judges to replace Antonin Scalia go, he may be a pretty close match. If the president were a Democrat, Judge Gorsuch would never have been nominated for the Supreme Court. For a Republican president, he appears to be par for the course. So why is there such furor over his confirmation?

Part of the reason for Democrats choosing to filibuster Judge Gorsuch is to pay back Republicans for refusing to consider Obama’s SCOTUS nominee of 2016, Merritt Garland. Democrats are mad and unforgiving, so the story goes, and so is their base. The second reason—the one most often cited by Senate Leaders such as Chuck Schumer or Dianne Feinstein—is that Judge Gorsuch is not “mainstream.” In other words, he is too conservative. A third reason, is that the judge’s performance, in both one-on-one talks to Democratic senators and in committee testimony, was not forthcoming enough for senators to form enough of an opinion of him to be able to vote for his confirmation.

The consequence of a Democratic filibuster of the Gorsuch confirmation will be that the Republicans will choose the “nuclear option” and revise the Senate rules to eliminate the right to filibuster a Supreme Court nominee. Gorsuch will be confirmed. The next Supreme Court Nominee will require only a simple majority for confirmation, with no possibility of filibustering him or her.

The rhetoric around the confirmation of Gorsuch vastly exceeds the reality. Democrats talk about the need to uphold the “sixty-vote tradition” for confirming SCOTUS nominees, although 60 votes is the number required for cloture (ending debate), not confirmation. Phrases such as “blowing up the Senate” have been used for invoking the nuclear option, with hand-wringing sentiments that the Senate “will never be the same.” The last time the nuclear option was used, it was the Democrats themselves who used it. Republicans are quick to point this out, and, while expressing reluctance to change the Senate rules, claim that they will be “forced” to do so by Democratic recalcitrance.

The arguments for a Democratic filibuster are supported by most of the Democratic base. It is in order to satisfy that base and continue a wave of opposition to President Trump and his policies, including his appointments, which will translate into votes in the next election, that is stoking the opposition to Gorsuch in the Senate. The cost is that, if another, more extreme conservative is nominated in the future, the use of the filibuster to oppose him or her would be lost. Of course the nuclear option would still be available on the next nominee, but if that person were more extreme, there might not be uniform Republican support for overriding the filibuster rule. 

The real cost of using the filibuster with Judge Gorsuch is that it continues the dysfunctional partisan approach to decision making in Washington. Both Democratic senators and their base are willing to put up with the dysfunction in order to satisfy their need for unrelenting partisanship. This is the same approach taken by Republicans for the last eight years and it is the approach that has left our country split into opposing camps that neither respect nor talk to one another. It’s not only not any way to govern, it is not any way to live together.




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