Arise, Justice Gorsuch. The Senate GOP has done what it said it would and changed the rules. No longer can Senate Democrats filibuster Supreme Court nominees, though the filibuster still exists for legislation.
With three vacancies likely coming up within the next few years (Ginsburg, Kennedy, and Breyer), it looks like the ideological balance of the Court might be close to permanently changing for a generation as Trump can replace any of them with any nominee he likes.
But let’s not get ahead of ourselves. Neil Gorsuch’s confirmation doesn’t alter the balance of the Court from what it was, before Scalia died 400-something days ago. Nothing has really changed, from what I can tell. The sad part of this is that the Democrats may have never fought so hard for something so pointless and lost so much for their efforts.
What possible benefit was there to fighting over Gorsuch? None, except for the Senate Democrats to prove to their irrational base that they were going to oppose Trump for its own sake. That’s what you want, isn’t it?
Look, I know you guys think that you’re just copying the GOP’s “obstruct everything” strategy that seemed to have worked so well. I wish it were that simple, but it wasn’t.
The Senate GOP filibustered Obama’s federal judiciary picks, yes. Republicans who have been complaining this week about Senator Reid eliminating the filibuster are conveniently forgetting that he had no choice. Perfectly qualified nominees were being filibustered for the lower courts. Then they refused to even hold hearings on Merrick Garland’s nomination.
They got away with it. Why?
My theory is that it’s because of how liberals have used the judiciary over the last two generations as a “super-legislature” to over-ride laws that they don’t like. It’s undemocratic and, to many Republicans and even center-right independents, it’s wrong.
There wasn’t any downside to opposing Obama’s nominees because the belief was that he would add more activist judges to the federal courts. Republicans weren’t just supportive of this because of Obama, but because of a strong belief that the federal judiciary is completely out of control.
“But Garland wasn’t an extremist or an activist judge, you asshole,” you might say. Maybe not, but I don’t doubt that he would have robotically voted with the other Democrat-appointed justices on every single issue. I didn’t see the point in risking it, in any case.
What you should understand is that Republicans have become convinced that the Supreme Court has become too…supreme. Whether you think it’s fair or not, Republicans see that it was the Supreme Court who first created the Culture War by settling social issues such as birth control and abortion that should have been left to the state legislatures and Congress to resolve. It’s because neither the people nor their elected representatives were allowed to do this that so many of those issues are still blazing after all these years.
Justice Scalia said it best:
Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.
This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
That’s why we get so animated when it comes to the confirming judges and SCOTUS justices. It’s why we are perfectly willing to leave seats vacant rather than risk another activist getting on the bench. It’s why we show up and vote in mid-terms. Shit, it’s why we elected Trump.
I really don’t understand what Senator Schumer was thinking, unless he just didn’t get how deadly serious the GOP is about winning permanent control the judiciary and ensuring that there are no more Roe v Wade’s or other over-reaching 5-4 decisions pushed on citizens with no recourse. He should have let a vote occur and tried to get something out of it. Maybe a promise on not eliminating the filibuster on Ginsburg’s replacement. Maybe a concession on some legislation. Something, anything would have made sense.
Instead, the Senate Democrats have lost any ability they had to force Trump to pick more “moderate” judges and justices. And they got nothing in return, except a promise that they won’t get primaried by progressives in their states and districts upset that they dared let Trump win something. The decision to filibuster Gorsuch literally benefited nobody except for the incumbent Democratic senators who joined in to save their own careers.
If I were a Democrat, I’d be pretty disgusted by that more than anything else.
Did Republicans behave hypocritically? Sure. They all railed against Reid eliminating the filibuster in 2013. They were all perfectly okay with not filling Gorsuch’s seat. They grandstanded about Democratic obstruction being done in reprisal for everything they’ve done and that’s unfair, I get it.
I’ll even say that I wish they hadn’t done this. Ultimately, Reid invoking the “Nuke Option” backfired. Today’s measure will eventually backfire on Republicans, unless you believe that there will never again be a Democratic president and Senate majority again. My wish had been that the Republicans let the Democrats filibuster. I wanted the majority to make them get up and speak until time ran out. At that time they could vote Gorsuch in and the filibuster could have been left in place for in case Republicans ever need it again.
But here we are. Congratulations to Judge Gorsuch. I hope he does well.