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.
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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