On a sunny day last March, a month after the death of Justice Antonin Scalia, President Barack Obama nominated Merrick Garland to the U.S. Supreme Court. The nomination expired on Jan. 3, marking the end of an unprecedented 293-day act of obstruction by Senate Republicans.
On Tuesday night, in front of a prime-time television audience, President Donald Trump handed Republicans the trophy for their successful gambit: the Supreme Court nomination of Neil Gorsuch, a Colorado native and federal judge serving on the 10th Circuit Court of Appeals.
Senate Democrats may filibuster the nomination, at which point Republicans would need eight Democrats to defect in order to get to the 60 votes needed to end the obstruction. If that doesn’t happen, Senate Majority Leader Mitch McConnell would be left with the nuclear option of destroying the filibuster itself, as former Senate majority leader Harry Reid did in 2013 to push through Obama’s executive and judicial nominees, excluding the Supreme Court.
In a word, it’s going to be messy. But we hope Senate Democrats find their way to the high road long ago abandoned by their colleagues across the aisle.
When the Republicans made it clear last year that they had no intention of fulfilling their constitutional responsibilities regarding the Garland nomination, we viewed the obstruction as the hijacking of government. We still do. The Republicans’ spurious argument that they wanted to give voters a chance to weigh in on the nomination, when voters had already done so by re-electing Obama, is and will remain an injustice committed against the American people. The wound to democracy is still fresh.
David Leonhardt, writing in the New York Times following Gorsuch’s nomination, echoed the sentiments of many on the left when he wrote: “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.”
The problem with Leonhardt’s call to battle is that the end is preordained. The Democrats can muck up the works, but the Republicans, under pressure from Trump, would just blow up the rules and get their man anyway. If Justice Anthony Kennedy retires as expected in the next year or so, and a Trump-style “outsider” is nominated in his place, all that Democrats would be able to do is sit back and watch the nightmare unfold. The filibuster isn’t the best card to hold, but it’s better than nothing.
We have our concerns about Gorsuch’s judicial record – he appears to be very much like Scalia – but we also believe he is a qualified nominee. That is our starting point, and we believe it is the appropriate place for Sens. Maggie Hassan and Jeanne Shaheen to begin their assessment. To mimic the behavior of Republicans after the Garland nomination by blocking Gorsuch not on principle but out of political vengeance is to take the low road on which the American people are weary, captive travelers.
The argument for the well-worn low road, as articulated by U.S. News and World Report’s Pat Garofalo on Tuesday, is this: “If (Mitch) McConnell and the GOP proved anything over the last eight years, it’s that there is essentially no political price to pay for obstruction. In fact, there are huge electoral rewards: They won a bunch of seats at the federal and local level, the White House and a chance to fill a Supreme Court vacancy.”
He’s not wrong, but just because voters in one election cycle sanctioned a race to the bottom does not mean that is where Senate Democrats should put down stakes. We ask Shaheen and Hassan to take the long view of the American experiment and grant the process the respect it deserves, the respect denied it for 293 days by cynical Senate Republicans.