Wednesday, February 01, 2017

The Gorsuch Nomination: Diversions From, and Opportunities For, Defending the Republic

Richard Primus

No hyperbole intended.  None.

Here’s my worry for the day: if the Democrats engage in no-holds-barred opposition to Judge Gorsuch, they may risk taking their eye off the threat that really matters.  That threat comes from the President, not the Court. 

There are good reasons to oppose Gorsuch, especially after the Garland affair.  But Gorsuch is not a threat to the Republic.  Trump is.  And that means that in thinking about how to approach Gorsuch, Democrats need to be guided first and foremost by figuring out how the confirmation process will help meet the threat that Trump poses, rather than thinking that the goal is to prevent Gorsuch from taking his seat.  Other people are more expert than I in the practical politics of such things.  But I wouldn’t be surprised if the right prescription here were something like this: Don’t pretend that Gorsuch isn’t qualified.  Do use the process to keep foregrounding Trump’s unconstitutional actions and attitudes, and the Republicans’ egregious behavior in Garland’s case, and the fact that most American voters voted against letting Trump be the one to fill the seat.  And use the process also as a vehicle for bringing more energized people into the fight to defend the Republic against a uniquely dangerous President.

*                      *                      *

Let me run through the thinking more deeply, starting with some basics that should frame the analysis. 

First, the Republicans richly deserve to be stymied because of the awful way they handled Garland.  If the Republicans had any sense of an obligation to play the game in a way that recognizes the legitimacy of their political opponents, they’d have confirmed him.  To be sure, the Republican stonewall on Garland violated no formal rule found in the Constitution.  But it was a case of what Mark Tushnet calls “constitutional hardball,” indeed hardball pushed to an extreme level—a level at which the game itself may fall apart.  In refusing to consider Garland, and in refusing to identify any other Democratic judge whom they’d consider, and in saying last October that they’d also stonewall anyone whom Hillary Clinton might appoint, the Republicans announced that they think that no judge whom a Democratic President might appoint should sit on the Supreme Court, ever.  As if it were appropriate to treat being a Democrat as tantamount to being a threat to the Constitution.  That’s a terrible way to participate in democratic institutions—as if one’s own party is the only legitimate one.  In fact, the Republicans total refusal to self-moderate, and to be willing to take some losses as well as some wins, is part of the same general breakdown in constitutional norms that enabled Donald Trump to become President.

Given how the Republicans behaved, there is a justifiably strong impulse among Democrats to fight the Gorsuch nomination in a similarly uncompromising manner.  No cooperation at all.  Scorched earth.  Filibuster.  It would feel pusillanimous to do otherwise.  And we all know what happens in the long run when one side insists on extracting maximum advantage and the other side chooses to act more temperately.  So for all these reasons, the calls for filibuster and so forth are understandable.

But here’s a second basic fact: Gorsuch will be confirmed.  There are 52 Republican Senators, and the idea that they'd let a filibuster block a confirmation strikes me as without foundation.  They'll do what it takes, and Gorsuch will be seated.  The Democrats could then take the satisfaction of knowing they'd done everything they could, including forcing the Republicans to go nuclear (that is, to end the filibuster as a tool for blocking nominations).  But one should think carefully about what that will accomplish.  The Republicans have little objection to going nuclear; there's not much downside in it for them.  Nor do I think that all-out opposition to Gorsuch will make the Republicans think twice about playing hardball at some future time. 

The fact that a Democratic stonewall would neither prevent Gorsuch from taking his seat nor help restore more cooperative norms between the parties (at least not in the foreseeable future) might not be a reason to forgo scorched-earth opposition if such a campaign were costless.  But it isn’t.  For one thing, an all-out (and doomed) campaign of opposition to Gorsuch might dissipate energy and attention that is badly needed for the fight against Trump himself.  I’m not a fan of Gorsuch’s jurisprudence, at least not where that jurisprudence is ideologically distinctive.  But I do think he is an intelligent person who believes in the rule of law.  That's a low bar, but it's not nothing right now. 

Yes, I think a GOP-dominated Court for the next however-many decades would do a tremendous amount of damage.  But the Republic has survived almost fifty years of that condition already, and it can survive more if it has to.  Whether the Republic can survive the Trump Administration is much more of a live question.  So as consequential as a Supreme Court nomination is, I worry that this one is, in the weird context of 2017, more dangerous as a distraction than as a fact.  An all-out fight against Gorsuch might even play directly into Trump's hands: the Democrats dissipate energy in a losing cause, and while everyone focuses on the pitched (if futile) confirmation battle, the Administration proceeds with any number of assaults on the constitutional order under the radar. 

I also worry that part of the attraction of fighting a judicial nomination is the false sense it would give that we are engaged in politics as usual.  It’s deeply perverse, of course, that that sort of warfare would now have become a comfort zone.  But relative to the reality we face since January 20, it is.  And if we let ourselves think we are engaged in politics as usual, we risk not rising to the real challenge Trump poses.

So of course the seat is ill-gotten, and of course a Gorsuch Court would be (from the perspective that I think reflects the best understanding of American law, including American constitutional law) a deeply unfortunate thing.  But we are in historically dangerous times, and we need to distinguish between the real threat to the Republic and other sorts of (still very big) problems. 
That doesn’t mean that the Democrats should just roll over, behave meekly, and vote in favor.  But it likely does mean that the Democrats need to see the confirmation process as an opportunity for shaping public discussion about Trump rather than as an occasion for attacking Gorsuch.  Time spent attacking Gorsuch in particular (whether about qualifications or about substantive views or pretty much anything else) might not be time well spent: he is going to be confirmed.  But what Democrats can do, I’d think, is keep saying that we are only here because the Republicans stonewalled a nominee at least as qualified as Gorsuch for no justifiable reason, and that the plurality of American voters voted to authorize Hillary Clinton, not Donald Trump, to fill the seat.  They can ask Gorsuch himself to stand by his earlier written statements that Garland was a highly qualified nominee (for the DC Circuit) and to ask him whether the stonewall was appropriate.  And they can ask him what he thinks about all sorts of Trump’s actions and statements.  Is it appropriate for a public official to attack a federal judge as biased on the grounds of the judge’s ethnicity?  What is the point of the Emoluments Clause?  Do you think that this or that statement (quoted from Trump) is consistent with our constitutional values?  And so on.  Gorsuch might or might not answer, but the Democrats should find good ways to keep asking and to make those questions a big part of what people hear and talk about when they hear and talk about this process.
This strategy also has the advantage of relieving Democratic Senators and operatives from spending a lot of time saying untrue things about Gorsuch, who, whatever my disagreements with him, is sufficiently intelligent and experienced and legally skilled that in a properly functioning Senate he’d be easily confirmed with bipartisan support.  As Garland would have been.
There’s one more variable I’ll mention here, one that I’m not qualified to assess.  To what extent can the Democrats use the process not just as an opportunity to shape conversation but as an opportunity for actual political mobilization—that is, as an opportunity to get people politically involved and ready to fight not just this nomination but the Trump agenda in general?  If that can be done very successfully, then it’s something to be weighed in the balance against the risk of losing sight of the greater threat.  So, for example, if a successful mobilization would require filibustering to show spine, that would be a real argument for going that way—even though it would drag the process out and create more time when the media and the water-cooler discussants were focusing on Gorsuch rather than on, say, Steve Bannon at the National Security Council.  (I have no trouble deciding which is the greater problem.) 
Whatever way forward the Democrats choose, it should be chosen in light of a clear understanding of who the greatest threat is.  Letting Gorsuch take Garland’s seat would allow a deeply reprehensible political strategy to succeed, and all sorts of unfortunate consequences (from where I sit) would follow.  But the Republic would survive.  Being distracted, or fooling ourselves into thinking we are engaged in politics as usual, is considerably more dangerous.

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