SCOTUS fight is not about qualifications, it is about an illegitimate nomination process

In an embarrassing display of his reality TV show showmanship, President Trump announced his nomination of Appellate Court Judge Neil Gorsuch to the U.S. Supreme Court in prime time last night.

Trump invited Judge Neil Gorsuch from Denver and Judge Thomas Hardiman from Pittsburgh to Washington, but only one would receive his rose. Trump in Peak Reality-TV Form for Supreme Court Reveal; Trump brings reality TV instincts to White House; Jimmy Kimmel gawks at Trump’s reality TV Supreme Court nomination, does him one better:

“That’s right, he freaking Ryan Seacrest-ed his choice for the Supreme Court,” Kimmel said. “This is like a two-on-one date on The Bachelor.”

“Was that a surprise?” Trump asked. “Was it?” “Well, yeah, you know who it was a surprise for?” Kimmel said. “The guy who drove all the way out from Pittsburgh to not get picked as Supreme Court judge.”

Regardless of what you may think of Judge Neil Gorsuch and Judge Thomas Hardiman, they were entitled to be treated with more dignity and respect than the has-been celebrities on Trump’s reality TV show The Apprentice.

The New York Times editorializes today, Neil Gorsuch, the Nominee for a Stolen Seat:

It’s been almost a year since Senate Republicans took an empty Supreme Court seat hostage, discarding a constitutional duty that both parties have honored throughout American history and hobbling an entire branch of government for partisan gain.

President Trump had a great opportunity to repair some of that damage by nominating a moderate candidate for the vacancy, which was created when Justice Antonin Scalia died last February. Instead, he chose Neil Gorsuch, a very conservative judge from the federal Court of Appeals for the 10th Circuit whose jurisprudence and writing style are often compared to those of Justice Scalia.

* * *

In normal times, Judge Gorsuch — a widely respected and, at 49, relatively young judge with a reliably conservative voting record — would be an obvious choice for a Republican president.

These are not normal times.

The seat Judge Gorsuch hopes to sit in should have been filled, months ago, by Merrick Garland, the chief judge of the Court of Appeals for the District of Columbia Circuit, whom President Barack Obama nominated to the court last March. Judge Garland, a former federal prosecutor and 20-year veteran of the nation’s most important federal appeals court, is both more moderate and more qualified than Judge Gorsuch.

That meant nothing to Senate Republicans, who abused their power as the majority party and, within hours of Justice Scalia’s death, shut down the confirmation process for the remainder of Mr. Obama’s presidency. There would be no negotiations to release this hostage; the sole object was to hold on to the court’s conservative majority. The outrageousness of the ploy was matched only by the unlikelihood that it would succeed — until, to virtually everyone’s shock, it did.

The destructive lesson Senate Republicans taught is that obstruction pays off. Yet they seem to have short memories. After Senate Democrats refused to attend votes on two of Mr. Trump’s cabinet picks on Tuesday, Senator Pat Toomey of Pennsylvania said, “We did not inflict this kind of obstructionism on President Obama.” Even absent such dishonesty, any Democratic impulse to mimic the Republican blockade by filibustering Judge Gorsuch would be understandable. But Senate Democrats should be wary of stooping to the Republicans’ level, especially because any such effort is likely to prove futile, since Republicans have the votes to simply eliminate the use of the filibuster against Supreme Court nominees.

In fact, today our Dear Leader Donald Trump, in yet another display of authoritarianism, has decreed that the Septuagenarian Ninja Turtle, Mitch McConnell, should use the “nuclear option” to get his nominee approved. Trump endorses use of ‘nuclear option’ to confirm his Supreme Court pick:

“If we end up with that gridlock I would say, ‘If you can, Mitch, go nuclear,’” Trump said, referring to Senate Majority Leader Mitch McConnell (R-Ky.). “Because that would be an absolute shame if a man of this quality was put up to that neglect. I would say it’s up to Mitch, but I would say, ‘Go for it.’”

Trump does not get irony. Where was his concern when Tea-Publican Senators refused to even meet privately with Judge Merrick Garland, let alone schedule a confirmation hearing before the Senate Judiciary Committee? Judge Garland was subjected to an unprecedented judicial blockade in the Senate out of pure political partisanship. Judge Garland was entitled to be treated with more dignity and respect than he received from Tea-Publican senators. To paraphrase our Dear Leader,  “it was an absolute shame that a man of this quality was put up to that neglect.”

Judge Gorsuch possesses the education, knowledge, and experience for the job, and he has a temperament and character suited for the job (some say he is “Scalia with a smile”). He is certainly qualified for the job. But so was Judge Garland, and it did not matter.

This Supreme Court fight is no longer about qualifications, but rather, it is now about an illegitimate nomination process, one corrupted by Tea-Publican partisanship that will establish an anti-democratic precedent.

David Leonhardt of the Times explains Why Democrats Should Oppose Neil Gorsuch:

It’s important to remember just how radical — and, yes, unprecedented — the Senate’s approach to the previous Supreme Court nominee was.

Republican leaders announced last March that they would not consider any nominee. They did so even though Barack Obama still had 10 months left in his term and even though other justices (including Anthony Kennedy) had been confirmed in a president’s final year.

The refusal was a raw power grab. Coupled with Republican hints that no Hillary Clinton nominee would be confirmed either, it was a fundamental changing of the rules: Only a party that controlled both the White House and the Senate would now be able to assume it could fill a Supreme Court vacancy.

The change is terribly damaging for the country’s political system. It impedes the smooth functioning of the court and makes it a much more partisan institution.

* * *

So what can Democrats do?

First, they need to make sure that the stolen Supreme Court seat remains at the top of the public’s consciousness. When people hear the name “Neil Gorsuch,” as qualified as he may be, they should associate him with a constitutionally damaging power grab.

Second, Democrats should not weigh this nomination the same way that they’ve weighed previous ones. This one is different. The presumption should be that Gorsuch does not deserve confirmation, because the process that led to his nomination was illegitimate.

Republicans still control the Senate, which means they can confirm Gorsuch if they decide to remove the filibuster during the nominating process. And so Democrats may not have the power to block the nomination.

But the only reason they should vote for Gorsuch is if they decide it’s in their own political interest to do so. They may decide, for example, that any filibuster would be doomed to fail now — but might succeed if another justice leaves the court during Trump’s presidency. Or they may decide that an all-out fight would encourage Justice Kennedy to retire, as the longtime Democrat Ronald Klain has warned. Either way, such tactical considerations are the ones that should guide Democrats.

* * *

I understand that all of these options sound aggressive and partisan, and it makes me deeply uncomfortable to make such an argument. But Democrats simply cannot play by the old set of rules now that the Republicans are playing by a new one. The only thing worse than the system that the Republicans have created is a system in which one political party volunteers to be bullied.

Paul Waldman of the Washington Post makes a similar argument. Why Democrats should filibuster Trump’s Supreme Court nominee — no matter who it is:

After Tuesday night, [Democrats are] going to be faced with an even more important question: Should they filibuster Donald Trump’s first Supreme Court nomination?

Yes, they should. They should do it to make a statement about the unconscionable way in which Republicans held this seat open, and about their willingness to be strong in the face of Republican bullying. And they need to realize that in taking this step, they have absolutely nothing to lose.

* * *

Filibusters of Supreme Court nominees are rare — the last one happened in 1968 — but this nomination constitutes the kind of unusual circumstance that demands an unusual response. When Scalia died last February, Republicans decided that they would refuse to allow a Democratic president to fill the seat, as the Constitution mandates. They gambled that while they would endure some criticism in the short term, eventually everyone would stop worrying about it, and they could just wait until they got a Republican president to allow a confirmation to proceed. Barack Obama nominated Merrick Garland, a candidate seemingly chosen to be as inoffensive to Republicans as possible: moderate, well-respected, the recipient of praise from Republicans in the past, and already 63 years old at the time. It made no difference.

Republicans made a power play because it was technically legal and they figured they could get away with it. The fact that their gamble paid off doesn’t make it any less reprehensible, and Democrats should take a simple stand: This seat was Barack Obama’s to fill, and Merrick Garland should be the one occupying it. This nomination is fruit of a poisoned tree, whether the nominee is a fine fellow or not.

And to repeat: They have nothing to lose. We can be honest and acknowledge that a filibuster won’t stop Trump’s nominee from getting to the court. We know what will happen if the Democrats go through with it. Republicans will express their outrage. Mitch McConnell will say that much as he regrets it, he has no choice but to call a vote to change Senate rules [the “nuclear option”] to forbid filibusters of Supreme Court nominees. That vote will succeed, and the nominee will then be confirmed on a party-line (or nearly so) vote.

Yet according to this report from CNN’s Manu Raju and Ted Barrett, some Senate Democrats are nervous about what the consequences of getting too tough might be. Some of them fear that filibustering now “would mean Democrats could lose leverage in the next Supreme Court fight if Trump were to replace a more liberal justice, since the GOP now has 52 seats in the Senate.”

That is just beyond ludicrous. What “leverage” will they have if they threaten to filibuster the next time a seat opens up? Will the threat force Trump to nominate a liberal? Of course not. As long as there’s a Republican majority, Trump will get his nominees confirmed, one way or another. Whenever Democrats choose to filibuster a Supreme Court nominee, Republicans will get rid of the filibuster. Waiting for another nomination doesn’t accomplish anything.

This seat was essentially stolen from Barack Obama. This is where Democrats need to make a stand, even if the outcome is all but inevitable. They have to demonstrate to the broader public that this seat should have been filled last year. And they need to show their constituents — the majority of Americans who voted against Donald Trump and want to see an opposition with some spine — that they’re willing to take a stand.

The truth is that the filibuster for Supreme Court nominees is going to be history one way or another. Either Republicans will eliminate it now, or they’ll eliminate it if Trump gets the chance to appoint another justice and Democrats filibuster that one, or the Democrats will eliminate it next time they control the White House and Republicans filibuster a nominee. Given that fact, this is the time to pull the trigger — when they have a real justification for it. Their voters are watching.

Sometimes you have to take a stand on principle and in defense of the Constitution. It is better to be on the right side of history than on the side of appeasement of Tea-Publican tyranny and Trumpism.

11 thoughts on “SCOTUS fight is not about qualifications, it is about an illegitimate nomination process”

    • “Please, please—it’s the Garland seat not the Scalia seat!”

      No, it’s not. Garland had 0% chance of being annointed for the Scalia seat on the Supreme Court. Even if the Republicans had allowed Garland to receive a vote, they were never going to let him actually be a Supreme Court Justice.

      • What does it say about the GOP Senators when one of the most moderate, inoffense, and highly qualified judges in the country, someone who had been praised highly by the likes of Orrin Hatch when being confirmed to the Court of Appeals, was ‘never going to be allowed to actually be a Supreme Court Justice’?

        • “What does it say about the GOP Senators…was ‘never going to be allowed to actually be a Supreme Court Justice’?”

          To me it says they understand where the true power now lies in Washington, D.C. I don’t like the Supreme Court having such power, but for 30+ years, democrats took every issue to the Courts. It was inevitable that the Supreme Court would ultimately become what it is today: The final word on every issue.

          It is raw hard politics, and it isn’t fair, but appointments to the Supreme Court are critical to hold sway on where the Country goes, culturally, socially and legally. A Justice appointed today will make decision that will affect our Nation for the next 30-40 years. Social justice, legal justice, justice justice, all will be driven by the Supreme Court. It affects everything! That is why both sides fight so hard to make appointments.

  1. “It impedes the smooth functioning of the court and makes it a much more partisan institution.”

    Unfortunately partisanship is exactly why appointments to the Supreme Court have become the most bitterly fought nomination in Washington. Our crippled govrernment has turned over so much power and authority to the Supreme Court that appointments of the “right judge” are deemed as critical. These omnipotents determine whose side prevails in the culture war, whose political philosophy will be dominant, etc. It shouldn’t be that way, but it is.

    “The truth is that the filibuster for Supreme Court nominees is going to be history one way or another.”

    I agree with him completely. Supreme Court appointments are too few and far between and are too important to be hampered by a vestigial remnant of Senate collegiality. It should not take 60 votes to approve their appointments; a simple majority is sufficient.

      • “The defense of raging hypocrisy is breathtaking.”

        First of all, you should check the definition of hypocrisy. There is nothing hypocritical in what they are doing. They have been very clear on what they were planning and it – surprisingly – worked out for them. Am I defending it? I don’t think so, but I am telling you how it is. The democrats created this monster called the modern Supreme Court and we all now have to live with the 800-pound gorilla they created. The democrats know how critical it is which is why they place such a high premium on Supreme Court nominees.

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