These Republicans already citing “fairness” and “constitutional duty” in demanding quick action on the nomination of Neil Gorsuch to the U.S. Supreme Court are enough to make a person sick. The utter shamelessness with which they mouth such high-sounding words is amazing.
The seat that Gorsuch will likely fill in the end has been open almost a year now, since the death of Antonin Scalia last February. President Obama acted quickly, naming Merrick Garland, an extremely mainstream jurist whom top Republicans had praised openly and often, to fill the vacancy. The choice of Garland was an act of compromise, but yet again it went unrewarded. Instead of acting on the nomination, Senate Majority Leader Mitch McConnell invented the three-year presidential term, claiming with no basis in fact or historic precedence that presidents in the last year of their term cannot fill Supreme Court vacancies.
As a result, Garland never got so much as a confirmation hearing, let alone a vote.
(And don’t get me started on the reality-show staging of the final selection, a degrading spectacle in its own right.)
It’s also important to remember that Senate Republicans were already building up a head of steam to do even worse. At a point in the 2016 campaign when it appeared that Hillary Clinton would be our next president, GOP senators such as Ted Cruz, Richard Burr and John McCain were already hinting that if Clinton became president, they would refuse to confirm any nomination she made to the court during her entire four-year term. Conservative legal theorists were seeding the argument in right-wing media, arguing that the Supreme Court could operate just fine with just eight justices or even six or seven.
“If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we’ve still got an opening on the Supreme Court,” as Burr put it.
Now, with a Republican in the White House, we’re supposed to forget that ever happened. We’re supposed to treat this like any other vacancy, and Gorsuch like any other nominee, and go back to traditional understandings for handling Supreme Court vacancies.
Well, forget that.
For a long, long time, I would have been open to that kind of argument, because it is absolutely true that this all-out, no-holds-barred partisanship poses great danger to our country. But as the Garland blockade demonstrates, the Republicans have no interest whatsoever in changing their ways. They have made compromise an unutterable word within their caucus; they treat every gesture of good faith from their opponents as confirmation of weakness. They not only refuse to abide by the rules and conventions that had long guided congressional behavior, they have invented new rules out of thin air to justify the unjustifiable.
The Gorsuch nomination is more evidence of that attitude. Yes, he is a well-trained jurist, with all the hallmarks of a potential Supreme Court candidate, but in ideological terms most observers would place him well to the right of Scalia, the man he would replace. His nomination was intended to pick a fight, not inspire a compromise. And if in normal times he would probably be confirmed, the same was even more true of Garland. And we all know how that ended.
So Democrats ought to fight the Gorsuch nomination with every tool at their disposal, including the filibuster, refusing to give the Republicans the 60 votes they need to move the nomination to the floor. Retaliation is the only weapon that Democrats have left. And if Republicans then vote to void the filibuster in Supreme Court nomination fights and thus ensure Gorsuch’s confirmation with a mere 51 votes, great.
Destroy the damn filibuster. Kill it dead, not just in confirmations but in legislative matters as well. It is a relic of a time long past, when senatorial courtesies limited its use to matters of great importance and controversy. That hasn’t been the case for a long time now. Rather than serve to calm partisan differences, it has become a tool to exacerbate them. Ending its use in future Supreme Court fights would be a minor victory in its own right.