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Dem Senators want to take Gorsuch down to satisfy base, but unlikely to succeed

Dem Senators want to take Gorsuch down to satisfy base, but unlikely to succeed

Barring something extraordinary, Gorsuch will be confirmed for the Scalia Seat.

Supreme Court nominee Neil Gorsuch is set to begin four days of confirmation hearings on Monday.

The hearings will be led by Senator Chuck Grassley (R-IA) for the majority, and Diane Feinstein (D-CA) for the minority. In other words, Republicans are in control of the process and there is little Democrats can do except bluster and try to stall.

The Democratic Party left-wing base, however, doesn’t appear to understand this reality.

Progressives are whipping themselves into a lather on social media, convinced that Democrats can stop Gorsuch from being confirmed to replace Justice Scalia. Who knows by what mechanism they believe this possible, but they do seem to believe it.

It’s not just on Twitter that progressives are “resisting” the Gorsuch nomination. Because Gorsuch is such a solid nominee, one that one Slate writer admits “is difficult to oppose on jursiprudential grounds,” progressives are getting a tad desperate in their ideas about what can be done to stop Gorsuch’s confirmation.

Among the more creative articles out there are the highly amusing Vanity Fair piece entitled, “How the Democrats can stop Neil Gorsuch,” and the somewhat strange Slate article, “The Case Against Neil Gorsuch.”

Vanity Fair’s thesis is essentially that Democrats need to grandstand and point out what a radical conservative Gorsuch is so that the American people will rise up and demand that Garland be anointed instead.

Seriously, you can’t make this stuff up.

While Democrats are busily pointing out to Americans that Gorsuch is well-respected, is famously principled and precise, and is, in every conceivable way, supremely qualified for SCOTUS, they should simultaneously hold Garland‘s confirmation hearing.

To make meaningful use of the Gorsuch confirmation hearing, Democrats will have to demonstrate traits that Republicans are long accustomed to displaying: coordination, forethought, and disciplined deployment of their strategy. In particular, they should have two principal goals. First, they should conduct the Garland confirmation hearing in the course of the Gorsuch hearing. And second, they should use Gorsuch’s previous remarks as an avenue to force him to acknowledge views that are far more extreme than those of most Americans. [emphasis not mine]

Vanity Fair eventually cuts to the chase, noting one teensy-weensy problem:  “In the long run, the Democrats have no power to block Gorsuch, except in the unlikely event that a solid majority of Americans comes to view anyone but Garland in Scalia’s seat as an affront to the Constitution.”

Calling the latter desperate clutch at flimsy straws “unlikely” is a stretch.  A solid majority of Americans are not going to rise up and demand that Garland be handed Justice Scalia’s seat.  If that were ever a possibility (and I don’t believe it ever was), it would have happened last spring when Garland was nominated and Senate majority leader Mitch McConnell made clear that no hearings would be held on such a significant seat during a presidential election year.

Ultimately, Vanity Fair suggests that this strategy they’ve spent nearly two dozen paragraphs detailing won’t work, but hey, good news! Gorsuch will never be, they breathlessly announce, “a legitimate justice of the Supreme Court.”

Meanwhile, over at Slate, the “illegitimate” claim is made and then immediately subsumed by the view that the fiendish Gorsuch “values religious people’s beliefs above all else.”  Apparently not only understanding but actually using the First Amendment as a foundation for decisions about religious liberty (i.e. Gorsuch’s Hobby Lobby ruling)  is somehow faulty or otherwise unacceptable.

But there’s another, almost more consequential issue at play when it comes to talking about Judge Gorsuch. It’s a problem that has to do with faith, and the many ways in which it has become the third rail of judicial confirmation politics. This has nothing to do with the prospective justice’s personal faith as an Episcopalian and everything to do with his willingness to let people of faith impose their views on others. The problem of religion in the courts centers on the alarming tendency to honor the claims of religious people that their suffering is the only relevant issue. If we cannot begin to have a conversation about why this is a problem, it will be all but impossible to talk about Gorsuch’s qualifications in a serious way.

Our current religious-liberty jurisprudence, as laid out by the Supreme Court in its Hobby Lobby opinion, is extremely deferential toward religious believers. What believers assert about their faith must not be questioned or even assessed. Religious dissenters who seek to be exempted from neutral and generally applicable laws are given the benefit of the doubt, even when others are harmed. Sometimes those harms are not even taken into account.

Ultimately, though, it’s all sound and fury, signifying nothing.  Barring an extraordinary development, Gorsuch will be confirmed; Senate Democrats cannot stop that from happening.

The problem for Democrats is not simply that they can’t stop Gorsuch (as things stand now, they can’t and they know it, even if their base does not).  This entire discussion points to a serious problem facing the Dems (the same one the GOP faced when its base demanded actions that were not then feasible).

How to resist everything while making no progress on big issues that resonate with their base?  Do they shift tactics and focus on a couple of things that will a.) build support and that they can b.) accomplish as the minority party (as the GOP did with ObamaCare and blocking gun control measures)?  Or do they keep flailing around and “resist” on every issue and non-issue that presents itself despite having no real means of stopping a unified GOP?  This option, the one they seem to have adopted, will lead to a frustrated base and further rifts within the party.

Fox News reports:

A group led by NARAL Pro-Choice America recently sent a blistering letter to Senate Democrats slamming lawmakers for not putting up more of a fight against Gorsuch ahead of Monday’s confirmation hearing.

“Democrats have failed to demonstrate a strong, unified resistance to this nominee despite the fact that he is an ultra-conservative jurist who will undermine our basic freedoms and threaten the independence of the federal judiciary,” said the letter. “We need you to do better.”

. . . .  Some progressives have actually urged Democrats not to ask any questions at the hearings, as a dramatic rebuff for Republicans refusing to give former President Barack Obama’s high court nominee, Judge Merrick Garland, a hearing or vote.

And they demand a filibuster to prevent Gorsuch from ever getting a floor vote.

Bitter feelings linger. “This is a stolen seat being filled by an illegitimate and extreme nominee,” said Sen. Jeff Merkley, D-Ore., “and I will do everything in my power to stand up against this assault on the court.”

A filibuster won’t stop the nomination, and for that, we can thank former Democrat majority leader Harry Reid who took the first step in eliminating the filibuster on lower court judges’ confirmations.

Democrats are in a tough spot (not that I mind).  If they vote for Gorsuch, which many would clearly do if given their druthers since they already did so in 2006, they will be lambasted by a progressive base who clearly doesn’t care how qualified Gorsuch is or what a great Supreme he will undoubtedly be.

The base wants to avenge Garland and Obama who nominated him, and their ultimate goal is to undo—figuratively now that they seem to have grudgingly accepted there will be no “do over” election—the November presidential election by declaring everything that happens after “illegitimate.”  They will threaten to primary every Democrat who doesn’t toe their radical, unhinged line.

Or Democrats can hop on the rudderless and increasingly bizarre “resist” express and stomp their feet and hold their breath . . . to no avail.

Whatever they choose to do won’t make any difference in terms of SCOTUS.  But once Gorsuch is confirmed, the progressive base will be furious and frustrated by what they perceive to be selling out and caving to Republicans and worse, to President Trump.

So ultimately, the kabuki theater this week will center on which Democrat Senator can be most vehement in their denunciation of the Bill of Rights and who can be the most obnoxious, disruptive, and rude, thereby earning their “resistance” cred and paving the way to a 2020 Democrat presidential nomination.


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He’s a well qualified, conscientious judge who puts the law first. Of course they would take him down if they could.

Maybe the lunatic left will make up the lie that Gorsuch is really a Putin stooge and that is why President Trump choose him!

In all seriousness, the luny left is making themselves more unpopular with their constant whining and name calling and protests that many in America will just tune them out. Also, how much longer do these lunatics continue with their childish games when Kennedy steps down and especially if Ginsburg calls it quits?

I remember when the Senate didn’t decide whether or not to confirm a SCOTUS nominee on political grounds. Clement Haynsworth and G. Harrold Carswell (1970) were voted down on bipartisan votes because they were thought to be mediocre. Then came Robert Bork (1987), and the Dems set a precedent that we still have to live with today.

Bork came with the highest qualifications and a long history as a judge. But he was a conservative, so the Dems hated him and used every type of character assassination they could think of. A new verb, to “bork”, is defined in the dictionary as “to defame or vilify a person systematically.” They succeeded in killing the nomination.

Soon after the Bork fiasco, the Dems borked Clarence Thomas, but they were unsuccessful in this case, even though they ran him through “a high-tech lynching for uppity blacks who in any way deign to think for themselves.” That was bad karma for the Dems, because now there is a justice on SCOTUS who knows all about their techniques of character assassination.

Based on what the Dems did to Bork and Thomas, we can be confident that they will use all the rumors, innuendos, and “alternative facts” that they can find or create to kill the Gorsuch nomination. Prepare to see a living example of the verb “to bork.”

    tom swift in reply to OldProf2. | March 19, 2017 at 10:38 pm

    Bork was a special case. His place in history is as Nixon’s hatchet man.

    I can sympathize with reasoning which says that a man with the evident intelligence and apparent legal and judicial skills of Bork but the ethical restraint of Nixon would not be a good man to put on the bench. Not good for anybody … liberal, conservative, or anyone else.

    The D’rats could make no such claim against Thomas. Nor, so far, have they been able to advance any such against Gorsuch. Mere whining won’t do the job.

Maybe that judge in Hawaii can issue a TRO enjoining Congress from voting on Gorsuch until Garland is confirmed. Because racism.

Look, it is an easy matter for the Dems to block the Gorsuch nomination. All they need to do is keep enough Dems from voting for him to keep the number of votes for his confirmation from totaling 60 votes. The Republicans can not confirm Gorsuch alone.

Now, some people are speculating that there will be sufficient Dem support to confirm Gorsuch. This might have been true a few weeks ago, but things have changed. With the rulings against Trump’s immigration EOs, making the Court any more conservative becomes a VERRRRY BIGGGGG DEAL. With Gorsuch on the Court, it becomes very likely that the TROs will be overturned and the power of the President to act as Trump and Obama have done, with regard to temporarily halting immigration from select countries will validated. And, I can’t see the Dems allowing Gorsuch to be confirmed while there is a strong possibility that one, and possibly two SCOTUS openings, will come up during Trump’s term. If Gorsuch is confirmed, it is likely that Kennedy will retire in the next year to 18 months. Ginsberg is on borrowed time. So, if Gorsuch is confirmed, then there will likely be another conservative on the court within 19 months and possibly two more.

My personal feeling is that, in order to gain confirmation of Gorsuch, the Republicans are going to have to use the nuclear option. We’ll have to see if they are willing to do that or not. I can’t see the Dems having any realistic choice to assist in Gorsuch’s confirmation. They have to do everything they can to block it. And, as the nuclear option can be invoked any time that the Republican leadership wants it, assisting in confirming Gorsuch, without going to a nuclear option, only buys them time, and not much else.

    BrokeGopher in reply to Mac45. | March 19, 2017 at 7:42 pm

    I think the Dems would be wise to withhold blocking Gorsuch with a filibuster, and preserve the nuclear option for the next nominee. They may be able to guilt enough spaghetti-spined republicans into not going nuclear when it’s Kennedy or especially Ginsburg’s seat. However, I do think there will be an effort to filibuster Gorsuch despite what’s good for their party.

      snopercod in reply to BrokeGopher. | March 19, 2017 at 8:13 pm

      I think the dems are counting on the usual cowardice of the Republicans.

        Republicans are currently in a position of power and are standing on high ground with Gorsuch. They have zero reason to be cowardly on this. Any hint at cowardice would have been revealed when Obama nominated Garland, anyway. At that point, the GOP could have feigned bowing to political pressure to push him through . . . but they didn’t. They certainly aren’t going to fold now when they are holding all the cards.

      This is what I think, too, BG. This is Scalia’s seat, and it will impact the balance of the Court for decades. No way will the GOP give this up unless something truly bizarre comes out during the hearings.

      They will, I agree, be more accommodating on the next nominee should that happen during Trump’s presidency, but not this one and not with this stellar nominee. It’s not like they are defending some frothing-at-the-mouth loon, Gorsuch is balanced, fair, intelligent, and well-respected by people on both sides of the aisle.

    Good points, Mac. Dems are in a bind, that’s for sure, and even those who would like to vote for Gorsuch will not be able to due to pressure from the base.

    McConnell, however, has clearly stated that Gorsuch *will* be confirmed. He’s said it repeatedly, even when pressed about invoking the nuclear option, and that means he will absolutely go nuclear on this. Remember, this is a tie-breaking seat (well, in theory, anyway), so there is no way he’ll go down in history as the GOP majority leader who balked at a pivotal historical moment. And as much as I hate messing with filibusters and minority party power, I can’t come up with a good argument against his doing so . . . heck, even Dems secretly agree Gorsuch is an outstanding pick.

    Barring some unforeseeable turn of events, Gorsuch will be confirmed . . . come hell or high water.

    Bruce Hayden in reply to Mac45. | March 19, 2017 at 9:18 pm

    Not sure about the need for the Nuclear Option. There are, what, 8 Trump state Senators up for reelection next year, and picking up those seats would give the GOP the sort of majority that the Dems squandered with passage of Obamacare. The immigration issue, and, esp Trump’s latest EO are going to be resoved in the Supreme Court, thanks to some liberal judges making things up for a political outcome. Voting against cloture is essentially voting against the EO, and, thus, voting for unfettered immigration by unvetted Muslim terrorist. Not popular, in the least in red America. Not going to help them get reelected. The GOP can just pray that they will get primaried – in most of these states, the only hope that the Dems have of holding the seats is if the incumbents, with good name recognition, can look innocuous (In MT, that means Jon Tester going back to the family farm and driving the tractor around in all his campaign ads). A hard left newcomer is likely to be buried, esp if Trump visits a bit in AF1. Which is to say that the primary threat is fairly hollow with those 8 Dem Senators.

    The thing is, is that the GOP has to go Nuclear if the Dems try to filibuster Gorsuch’s nomination. The stakes are too high now, in terms of domestic security, to play around. Moreover, using campaign rhetoric against an office holder, such as Trump, is exceedingly dangerous precedent, and can’t be allowed to stand, even if vetting for Muslim terrorists weren’t an issue. I don’t see Trump sitting still for it. Which is to say that the best that the Dems could do, strategically, here would be to vote for cloture (ending any filibuster), and then allowing the Trump state Dem Senators to vote their consciences on the actual nomination, when it doesn’t matter. Strategically, so that they could retain the potential of filibustering a SCOTUS nominee at a time when the Republicans aren’t ready to go to the mattresses – for example when one of the libs on the court is replaced.

    Milhouse in reply to Mac45. | March 20, 2017 at 1:52 am

    Look, it is an easy matter for the Dems to block the Gorsuch nomination. All they need to do is keep enough Dems from voting for him to keep the number of votes for his confirmation from totaling 60 votes. The Republicans can not confirm Gorsuch alone.

    What on earth are you talking about? Why would he need 60 votes?

    Their only hope would be to try to stop it from coming to a vote, but they won’t be allowed to do that. If they try to filibuster this nomination the majority will remove the distinction in the rules between supreme court and other nominations, and they will lose the ability ever to filibuster a nomination again. They know this, so they won’t try; they’ll keep their powder dry for another time when they might hope to succeed.

Subotai Bahadur | March 19, 2017 at 9:01 pm

Depending on McConnell to do what he said his is going to do is fraught with risk. “Comity” created by Republican surrender is his life’s blood.

I expect an attempt at a filibuster, and a Republican cave. McConnell will not invoke the Reid Rule unless personally threatened. And the Democrats will promise him anything [and as usual renege, but that has never stopped McConnell before].

I would love to be proved wrong. With McConnell slow walking Trump’s nominees in collusion with the Democrats [Congress will only meet for 8 days in April] I don’t expect to be proved wrong.

    How is McConnell “slow walking” Trump’s nominees? Did it occur to you that President Trump can make recess appointments when the Senate is not in session? With the Senate under GOP control, they can easily ensure that no Senate activity takes place during the April 10-21 Senate break . . . just as McConnell, as Senate majority leader, ensured the Senate was not in recess (i.e. had some kind of business during breaks to ensure the recess appointments could not be made) after the Garland nomination.

    Further, Senate rules provide for minority party challenges, the very same rules that McConnell used to great effect when the GOP was the minority party. I’m not a fan of McConnell, but I don’t see why you think that McConnell is a lightweight or easily pushed around. He’s neither. He’s tough as nails, and has a backbone to match. Mistaking his following his own political instincts and knowledge and his own slightly squishy worldview as weakness is off the mark. That he doesn’t do what we think best is not proof that he’s weak or one quick to surrender; he works within (and around) Senate rules, and he’s a bit less ideological than I might like, but he’s no pushover. That’s fantasy, and frankly, if Gorsuch is confirmed, we are about to hear from the regressive left what a lightweight loser Schumer is for not stopping the Gorsuch confirmation. He can’t stop it. There is no way for him to please his base, and his base will turn around and accuse him of being a Trump-supporting, GOP-loving sell-out. Sound familiar?

Schumer will soil his knickers this summer when Kennedy retires and President Trump nominates Ted Cruz to replace him!

    RodFC in reply to MTED. | March 19, 2017 at 10:41 pm

    I think a master tactician would nominate Diane Sykes.

    In retrospect, because he is replacing Scalia, Gorsuch will not be filibustered. The main tactic of many Dem Senators is to pass Gorsuch and filibuster the next Senator. Much harder for them if it is a woman, especially if an election is coming up.

Pelosi Schmelosi | March 20, 2017 at 1:35 am

… any Dem or Indy who allows #gorsuch over #garland should be voted out of governement…

1. Good! The Repubs have a shot at a 60 Seat Senate in ’18.
Keep it up guys and you won’t be able to block the next one.

2. Don’t they teach spelling where you went to college?

Bucky Barkingham | March 20, 2017 at 7:39 am

I expect to see “spontaneous” demonstrations among the spectators of the confirmation hearing, complete with pre-printed signs and banners, courtesy of LibDem Senators providing them with tickets. Theatrics for the TV cameras to mollify the rabid base.

Is anybody willing to venture an ETA?
At least things are moving.