What to do About Neil Gorsuch?

At various points during his campaign, Donald Trump liked to boast that his administration would be so successful – would do so much “winning” – that even his supporters would grow tired of the avalanche of victories. “We’re going to win, win, win,” he said in one speech. “You’re going to get so tired of winning. You’re going to say, ‘Mr. President, please! We don’t want to win anymore, it’s too much!’ And I’m going to say, ‘I’m sorry, we’re going to keep winning, because we’re going to make America great again!”

Trump may have been exaggerating. Two and a half months into his presidency, he has signed no major legislation, his first big legislative push failed horribly, his most consequential executive order has been bogged down by the courts, his administration is plagued by infighting and leaks, and he has failed to deliver on, or even make headway on, any of the promises he outlined in his “Contract with the American Voter.” Trump’s cratering approval numbers imply that people are getting tired of something, though it probably isn’t winning.

This week, though, Trump is going to get a win. Judge Neil Gorsuch will be confirmed to the Supreme Court, filling a seat that has been vacant ever since Antonin Scalia’s death over a year ago. The Gorsuch nomination was met with wide approval (pundits of all stripes were eager to declare him “eminently qualified”) and relief. Trump’s appointments have been erratic at best. In some cases, he has chosen well-qualified, professional people to staff his administration; in others, he has selected extremists, conspiracy theorists, or unqualified neophytes. Trump could well have nominated a person who fit into one of the latter categories to fill Scalia’s seat, and dared Republicans to oppose him, but instead he chose Gorsuch, a highly qualified, intelligent, mainstream conservative.

This move has put Democrats in a bit of a bind. Do they go all-out in their opposition, asking vulnerable members from red states to oppose someone who is probably going to be confirmed regardless? Or do they choose not to fight this particular battle and let the nomination go through?

Senate Minority leader Chuck Schumer has said that Democrats are going to filibuster him. Since saying that, he has faced defections from Joe Manchin and Heidi Heitkamp, but has gotten the suprising support of Missouri senator Claire McCaskill. As of now, it looks as if Democrats will be able to filibuster if they want to.

In my opinion, the political implications of the Gorsuch vote are fairly inconsequential. If a sufficient number of Democrats break away from Schumer, Gorsuch will be confirmed. If Democrats are able to filibuster him, Republicans will end the use of the filibuster on Supreme Court nominees, and Gorsuch will be confirmed. Knowing this, Democrats should feel free to vote the way they want to without worrying about the politics of it. Whichever way they vote, the result will be the same, so they should vote without considering how their vote will affect the outcome.

With that in mind, I would urge Senators to vote No on Gorsuch. They should vote No not because the nominee is unqualified or extreme – he is, in fact, highly qualified and fairly mainstream. They should not vote No because they believe the seat rightfully belongs to Merrick Garland, who was never allowed a hearing, because nothing they do will make Republicans reconsider Garland. Instead, I think they should vote No because he was nominated by Donald Trump.

In order to bring Republicans in line behind him, Trump made a deal with them. The terms of this deal were simple: he would deliver them their legislative agenda, which he did not himself care about, and in return, they would provide cover for him. He could be corrupt if he wanted; they would not do oversight or demand that he not use the presidency to enrich himself. He could say and do ridiculous things; they would not criticize him. He could pursue the more extreme items on his own agenda; they would not stand in his way.

As part of this deal, Trump promised to deliver them a Supreme Court nominee they could get behind, and he upheld that end of the bargain. The Gorsuch pick is one that could have been made by any Republican president, and it is one that, under normal circumstances, Democrats would have little grounds to oppose. But these are not normal circumstances. Nothing about the deal Republicans struck with Trump is normal. On his way to the Presidency, he violated every norm he could, and Republicans enabled and supported him. It’s a crooked pact, and Democrats should refuse to participate in it.


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