Neil Gorsuch Shouldn’t Be On The Supreme Court. Democrats Should Allow His Confirmation Anyway.

I fervently believe three things about Neil Gorsuch, Donald Trump’s nominee to replace the late Antonin Scalia as an associate justice on the Supreme Court of the United States.

1. By all accounts, he is experienced and qualified for the position.
2. He has absolutely no business being nominated.
3. Senate Democrats should take a knee and allow him to be confirmed anyway.

These may seem like contradictory opinions to hold simultaneously, so let me explain — trust me, it’s more than you’re ever gonna get from the current President of the United States.

It likely goes without saying that Gorsuch’s avowed practice of originalism rubs me, a Godless Black Chicago Liberal, the wrong way. This especially holds if he practices it the same way his would-be predecessor did on the Court: selectively choosing which judicial or legal precedents to uphold, while professing to be upholding the spirit of the Founders at all times. Looking at his answers during the confirmation hearings, his past writings and rulings, and his public statements, he seems to be cut firmly from the same cloth as Scalia and the surviving members of the conservative wing, with equally predictable regressive votes on subjects like religious freedom and reproductive rights. By no stretch of the imagination is he someone I want to see sitting on the Court.

But if the question is a matter of qualification outright, then there’s no question that he has the chops. He carries a J.D from Harvard Law, has been working in the federal judiciary since the 90’s, and his nomination has pulled endorsements from all sides of the political spectrum — something very few of Trump’s other nominees can say. Political opinions and personal beliefs notwithstanding, Gorsuch clearly has the resume for the job. As Press Secretary Sean Spicer said earlier this week in lobbying for Democrats to allow Gorsuch’s confirmation, there’s a history of opposition Senators ultimately allowing a president’s Supreme Court nominees through (after a token show of obstruction) as a matter of bipartisan goodwill if they’re qualified.

And if you believe Spicer, wow! Sincere congratulations on being able to understand this despite only being one year old, you’re a prodigy in the making. For the rest of us who remember the events of the last year, Spicer’s claim could be charitably defined as jiggery-pokery.

Less charitably, it could be called bullshit.

Because that history was savaged last year by the Republican Party, and it’s because the Republican Party did it all that Gorsuch has an opportunity to be confirmed now.

When Scalia unexpectedly died in February of 2016, Senate Republicans led by Mitch McConnell launched their most nakedly obstructionist bid against President Obama yet. They openly stated their refusal to consider any of Obama’s nominees to replace Scalia, citing an immediately disprovable claim that election year nominations were invalid (Justice Anthony Kennedy’s unanimous confirmation in 1988 by Ronald Reagan would disagree). Some Senators wavered, but all ultimately held firm in refusing to hold a hearing for any of his nominees. Obama nominating an apparent centrist in Merrick Garland, one who had enjoyed Republican support in the past, did nothing to break their ranks.

It was one of the ballsiest moves in modern political history, and one that was looking to backfire all throughout the election as the presumptive Republican nominee shoved his foot deeper and deeper down his throat. Conventional wisdom was that Garland was as centrist a nominee that Republicans could hope to get under a Democratic president, and under a Hillary Clinton administration her pick would swing further left — assuming she had the votes in the Senate to do so. It’s worth remembering that supposed “moderate” Republican John McCain pledged to block any of Clinton’s nominees too if she won, presumably stretching out Scalia’s vacancy (already the among the longest in history) for as many years as possible until a Republican could replace him.

But come November 8th, such long-term intransigence was rendered unnecessary. McConnell’s gamble paid off. The GOP held onto the Senate, and as we well know, took the White House as well in one of the more shocking upsets in American history. To the victor go the spoils, and any chance Garland had of seeing an eleventh-hour appointment to the Court died when the Rust Belt bent the knee to Trump.

None of this is to say that Garland was owed a seat, or that no Republican was allowed to oppose him on the merits of his judicial background. That’s just the thing; the opposition was not rooted on the merits of his judicial background. Garland was every bit as qualified as Gorsuch for the seat; if anything, Garland was apparently someone the Republicans would’ve been perfectly fine seeing confirmed under a different president, or perhaps in a different year. Instead, Garland was denied a hearing specifically because he was Obama’s nominee with an election nine months away, and because the Senate GOP sensed an opportunity to further delegitimize a President whose delegitimization was their avowed top priority and seized it. It was a brazen political hijacking, and it worked.

Gorsuch then, effectively, is filling a stolen seat. Legally stolen, by any measure and insofar as theft can be legal, but one that flew in the face of longstanding political norms, with reverberations that might echo for decades. This is why any complaint that Senate Democrats are obstructing the democratic process or threatening the fabric of the republic are largely bunk: they are doing nothing that Senate Republicans didn’t do and promise to continue doing last year.

The argument that Republicans are using now against Democrats in favor of Gorsuch, that the nominee’s qualifications should rise above political differences or partisan considerations? It’s the exact argument Democrats made last year for Garland. For Trump, Spicer, McConnell, or literally anyone else in the Republican Party or on the right wing to suggest otherwise is the height of dishonesty. Be it out of malice, precedent, or principle, Senate Democrats are fully justified in using every weapon at their disposal to scuttle his nomination, including launching a filibuster that would require sixty votes in order to push Gorsuch through.

But I don’t think they should.

Ideologically speaking, replacing Scalia with Gorsuch doesn’t shift the Court much. It’s replacing one arch-conservative with another, albeit one far younger and thus more powerful. But the balance of power will remain the same with four conservative justices, four liberal justices, and a nominal swing vote in Justice Kennedy. Things haven’t been great under that makeup in recent years, what with corporations gaining the rights of people under Citizens United and actual people losing voting protections in Shelby County v. Holder (Chief Justice John Roberts wants you to know that serious racial discrimination is totally a thing of the past).

But it’s also this 4–4–1 court that has offered some protection for LGBTQ rights, abortion access, and affirmative action; it was one of the Court’s conservatives, the aforementioned Chief Justice Roberts, that cast the deciding vote to protect the Affordable Care Act. Swapping Scalia for Gorsuch doesn’t jeopardize that balance. It isn’t the generation-defining swing to the left that progressives dreamed of the moment news broke of Scalia’s death, but reinforcement of the status quo isn’t necessarily the worst thing in the world. It isn’t the inevitability of Donald Trump’s first Supreme Court nomination that should worry Democrats.

It’s the possibility of a second.

Distasteful though it might be to project how many years someone has left on this earth, the Supreme Court seems to be one of the few arenas where such ruthless calculus is accepted. And looking at the makeup of the Court, the ideological leanings of the three eldest members only heighten the stakes of such considerations for Democrats. Ruth Bader Ginsburg is 84 years old, Anthony Kennedy is 80, and Stephen Breyer is 78. For those of you keeping score at home, that’s two liberals and a nominal moderate. If (god forbid) any one of these three were to pass (knocks on every wooden object in reach), retire (furiously rubs bunny’s foot), or otherwise be incapacitated (burns incense, offers Gregorian chants) before the Democrats can take back the White House or Senate, then Donald Trump will be nominating a second justice to the Court, and the odds of them being anything but a dyed-in-the-wool conservative are practically zero.

Suddenly, there are no more toss-ups or swing votes, but a solid five-man conservative bloc lying in wait for every case on the docket. Marriage equality, LGBTQ rights, voting rights, reproductive rights, civil rights protections for minorities and undocumented immigrants, press protections, environmental protections: everything would be up in the air. The first Trump pick should annoy the left, not least of which for the circumstances surrounding its availability. The mere thought of a second, or third, or fourth Trump pick should petrify them.

From the moment Trump was elected, there has been immense pressure on congressional Democrats from their base, particularly those further to the left, to do everything in their power to oppose him at every turn. Shutting down Gorsuch’s nomination is just an extension of that desire. It’s not an unreasonable demand; the president is a wholly unqualified, openly deceitful, childishly petty, and nakedly malicious man, and if any good comes from his presidency it’ll either be by accident or as a result of forces beyond his control.

But unlike left-leaning private citizens or their Republican colleagues, congressional Democrats don’t have the luxury of maintaining ideological purity, even in the Age of Trump. The party is rooted on a fundamental difference; that the federal government can work, and good federal governance can work well. And good governance, particularly when you’re in the minority across three branches, requires compromises. It requires acting like adults, it requires respect for the norms of American politics, and it requires recognizing that obstructionism may be a great tactic to win elections, but a poor one to actually govern after winning one. Look no further than the Affordable Care Act and the American Health Care Act for an illustration of the difference.

In short, it requires being the bigger man. One major party has already proven that it has no interest in doing so. The country can’t afford for there to be a second.

Forcing the Republicans to detonate the so-called nuclear option and ending usage of the filibuster is a drastic move, and a card fraught with political fallout that the Democrats only get to play once — think of it like a legislative Spirit Bomb. The very real possibility that they might need to play it later in a few years’ time should give them pause before reaching it for now. President Trump’s approval ratings are cratering all on his own, and congressional Republicans are watching their political capital quickly slip through their fingers through their own infighting. By simply doing nothing, the Democrats’ stock is rising.

But they could jeopardize that by stepping into the ready-made narrative that they’re aping the obstructionist policies of their opposite number, that they’re trying to delegitimize the president and the results of the election. And while that may not mean much now, that could be critical in 2018, when the midterm elections roll around. The Democrats (plus two allied independents) are defending twenty-five Senate seats, while the Republicans are only defending nine. That’s almost a 3:1 ratio, and while it’s too soon to tell where the state of politics might be a in a year with Trump at the helm, those aren’t great numbers.

Considering how many Democrats are representing states that broke for Trump last year, maintaining as much goodwill as possible until Election Day will be critical, and dying on the hill that is Gorsuch’s confirmation may be anathema to that cause. Because if the Democrats do the unlikely and hold the line across the board, then they only need three more seats in order to reclaim a majority (two seats won’t be enough with Vice President Mike Pence looming as a tiebreaker.) Given the mercurial voting patterns of Sen. Susan Collins and Sen. Lisa Murkowski of late, they may not even need that. There won’t be a Democrat in the White House for four years no matter what happens, but with luck, there could be a Democratic Senate majority leader in two. And if that happens, then operating under the principle established by McConnell, the Court is safe.

On the face of it, spotting Gorsuch an up-or-down vote won’t please many people. The base will hate it as being too capitulatory to a president they loathe, and it’s unlikely to win over many converts from the right wing. But if an example of a party operating in good faith while in the minority holds any weight among voters in 2018, it’s worth preserving the political capital afforded to the opposition as much as possible. This isn’t to say that the Democrats should just sweep Gorsuch through, by all means, if his margin of victory needs to be a tight 52–48 along party lines, so be it. But the method of opposition should go no further than that.

With recklessness in the Trump White House and fecklessness in a GOP-controlled Congress, the country needs the Supreme Court to stand as a bulwark like no other time in modern history. If the legislature will not check the executive, as they have shown no indication of doing to this President, that makes the judiciary’s checks on it all the more important. Having badly fumbled the 2016 election, the Democratic Party owes it to not only themselves and their constituents, but to GOP voters who will be hurt by their own party, to protect it for as long as possible until they get back into the halls of power.

May it be sooner rather than later.

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