Democrats Were Right to Fight Gorsuch's Confirmation - It Will Always Be a Stolen Seat

By Ross Barkan, Guardian UK

08 April 17

Trump’s supreme court pick will probably get his robes, but Senate Democrats still need to show they stand for something so that voters reward them next time

eil Gorsuch’s inevitable ascent to the supreme court will confirm a couple of truths about American politics: the Senate, like every other significant federal institution, cannot escape the ideological war between left and right; and Democrats had no choice but to fight.

With Republicans failing to secure the 60 votes needed to avoid a filibuster, majority leader Mitch McConnell is set to invoke the so-called nuclear option, killing the ability of Democrats to indefinitely delay Gorsuch and allowing a simple GOP majority to confirm him. For admirers of the Senate’s rules and procedures, this will be a dark day, guaranteeing future supreme court nominees only need support from the party in power to move forward.

But if Friday’s Senate business unfolds as we expect and Gorsuch gets his robes, this will be more a reflection of reality, not an evisceration of cherished norms. Republicans will blame Democrats, since it was their old leader, Harry Reid, who destroyed the filibuster for the president’s appeals court and executive branch nominees. Reid’s maneuver – born out of frustration at Republican blocking tactics during the Obama administration – cost Democrats real leverage to block Donald Trump’s cabinet appointees.

Whatever escalation of hostilities Reid can be faulted for, however, it does not compare to how Republicans in the House and Senate obstructed Barack Obama’s presidency, scuttling all hope of significant legislative achievements by the second half of his first term. The culmination of this remarkable obstinacy was not allowing a hearing on Obama’s pick to replace the late Antonin Scalia, Merrick Garland. For a generation of Democrats, this will always be the stolen seat.

Blocking Garland forced the hands of Democrats and unwittingly gave them a roadmap to the future. McConnell’s gambit worked wonderfully for Republicans. Scalia died in February, Trump was elected in November, and Republicans retained control of the House and Senate. At this point, for Democrats, there is no real upside to not filibustering Gorsuch: it’s not as if McConnell would ever allow Democrats to filibuster the next Trump nominee to the supreme court, assuming he gets another one. This is the necessary fight.

Gorsuch is a qualified ideologue. He was a Harvard Law classmate of Obama’s and rose to become a federal appeals court judge in Denver. He is bright and reliably conservative, an opponent of abortion rights, affirmative action and environmental protection. He is the nominee every rightwing thinktank and donor craved.

At 49, Gorsuch has the potential to shape the supreme court for generations to come, cementing the advantage conservatives have held in recent years. Democrats must pray Trump is a one-term president who only gets one opportunity to name a justice. His power at the moment confirms again what a disastrous failure Hillary Clinton’s campaign really was and why Ruth Bader Ginsburg, the beloved liberal hero of the supreme court, deserves only opprobrium for not retiring when Obama and a Senate Democratic majority had a chance to name an ideologically suitable replacement.

Republicans rewrote reality under Obama, and now Democrats, internalizing the GOP success and paying attention to what their voters actually want, are ready to return fire. America’s broken constitutional democracy now permits change only when one party exerts near-absolute control of government. The sole hope of reversing Trump’s most poisonous prescriptions and turning back some of the supreme court’s worst decisions is to seize power from the GOP.

In order for the Democratic party to rebuild, it must stand for something. It must give regular people a reason to choose their candidates and not just oppose Trump. By uniting to attempt to thwart a Scalia-like supreme court nominee, Democrats will prove they are finally heeding the will of their voters. Their reward, perhaps, will be getting to confirm one of their own again someday.