Neil Gorsuch may be a decent man and a reasonable jurist, though it is clear that his “reasonableness” includes some very right-wing convictions about reproductive freedom and “religious freedom.” But okay. He is not a lunatic, unlike most Trump appointees. It does not matter. He is being nominated in the middle of a crisis of the republic, and he is only being considered because the Republicans outrageously refused to allow President Obama to fulfill his constitutional duties to fill the Court vacancy caused by Scalia’s death.

Democrats must oppose Gorsuch, on principle but also because of the pragmatics of starting to organize real opposition to Trumpism and to mobilize Democratic constituencies and reinvigorate the party.

Indeed, every Democratic Senator who questions him at his confirmation hearings should ask him these three questions:

(1) do you believe that the Constitution empowers the sitting President of the US to fill vacancies to the Supreme Court with the advice and consent of the Senate, and do you believe that it is constitutional for a Senate majority to refuse to even consider a nominee because they don’t like the President and would rather have a vacant seat than anyone appointed by him or her?

(2) Are you familiar with the record of Merrick Garland, the Chief Judge of the US Court of Appeals for the District of Columbia? Do you believe that he is an honorable and respected professional jurist who meets the qualifications to serve as a Supreme Court Justice?

(3) Do you believe that it was proper, right, or constitutional for the Republican-controlled US Senate to refuse to even hear Garland’s nomination?

It is important to call him out and put his integrity to the test.

But it is even more important to use the Senate confirmation process as an opportunity to communicate loudly and clearly a simple and yet fundamental message: in a constitutional democracy the rule of law matters.

The general public needs to be reminded, seriously and clearly, that the Republican party has recently played fast and loose with the rule of law, and that the current Republican President has disdain for the rule of law, his TV performance last night notwithstanding.

The core Democratic constituencies need to be reminded — and perhaps even informed! — that the Democratic party is serious about principle and serious about mounting a strong opposition to the Trump agenda.

And the Republicans in the Senate and the House and throughout the land need to be reminded that if politics is “hardball,” the Democrats can play too, and that they can play for the “long game” as well as the short one.

There is danger here, as there is in all political moves. Such an opposition to the Gorsuch confirmation could backfire among the broad public if it is not done effectively and communicated well. It might well intensify the sense of constitutional crisis — but the crisis is being caused by the Republicans and especially by Trump, and it will not be resolved by laying down to whatever the Republicans want. Moreoever, such a move will surely upset those Republicans, such as John McCain and Lindsay Graham, who in other ways are potential allies in contesting some of the extreme measures envisioned by the Trump administration. But, again, too much has been done to placate these figures, who have been timid, and inconsistent, in their criticisms of Trump, and have consistently signaled that they are Republicans first. So be it. If they might be allies in some things, this is fine. This is a reason to engage them agonistically. But it is not a reason to submit to them.

The Senate’s authority to advise and consent, and the Congressional power to hold public hearings more generally, is an important part of many decision-making processes. In this case, it will determine whether or not Gorsuch will be confirmed. Here the hearings will matter, but also the Senate filibuster rule, and whether Senate Republicans will respect this long-standing rule.

But such hearings are also important in a broader way, as occasions for issues to be publicly aired, for experts to be invited to give testimony, and for political appointees to be challenged, about their own views but also the views of the Administration that has nominated them.

Senate Democrats are now on the spot in a very public way. They will either perform their own cravenness, or they will perform a broad political commitment to the rule of law and to the core values of a liberal democracy.

They ought to say a loud “No!” to Gorsuch. For by doing so, they will be saying “Yes!” to the political project of building a new Democratic, and democratic, political majority.

5 thoughts on “A “No!” to Gorsuch is a “Yes!” to Democracy

  1. I think you are making a mistake. First, and mainly, because the democrats will lose this fight, one way or the other. Either the filibuster will break, or the nuclear option will be used. Second, because the main issue that we will face is that of presidential powers, and to win on that allies will be needed. It is not obvious how Gorsuch will come down on what are very likely more executive attacks on the rule of law. It is not obvious how Roberts and Kennedy will come down. It is thus a mistake to force polarization on this appointment, especially because it is a losing fight.
    Today the main fight is waged by the judges and young lawyers against the executive order, arguably unconstitutional and in violation of international law. We should not distract from this struggle with an illusory challenge against this nomination. Gorsuch should be questioned seriously on these and other issues, including the Merrick nomination. But the filibuster should be avoided.

  2. I had similar thoughts when I read this piece. It’s always important to understand the past, focus on today, with keep an eye towards the future. We know that Democrats have been loosing power at the Federal, State and Local levels, with some exceptions. In part, I think that this is due to a lack of understanding of many communities, the use of hyperbole, and high profile uses of violence, all of which has chased away much of the support that is needed. Information is available today and doesn’t get lost. The statements by Senator Biden in June of 1992 and Senator Schumer in July of 2007 will be used to expose what seems to be hypocracy on Supreme Court nominations. Today, we know that this, in the end, will be a battle that uses significant energy and resources, and will probably be lost. While pleasing some elements, the opposition will probably significantly offend many more. Ironically, Judge Gorsuch may be an excellent choice to restrain an aggressive presidency. He believes in the separation of powers. Most likely, he would vote to constrain President Trump, and no doubt would have voted to constrain President Obama. It is important to focus on battles that can be won, and find ways to better understand and communicate with others that have been lost.

  3. I find the argument here compelling, but I also find the comments by Michael Corey and Andrew Arato persuasive. I think, therefore, that pushing the questions Issac presents is necessary, for the reasons he gives. Also: Where does Gorsuch stand on the attacks on Muslims, immigration, freedom of speech as it is under attack? But fighting very hard against confirmation may not be wise, now that the Supreme Court
    may be the only chance we have to fight the authoritarianism of the Trump Bannon Regime.

    1. This is a response to the article and the comments. I see the nomination of Gorsuch as a play out of Obama’s handbook. Obama nominated someone who was reasonable and centrist, and we could not know how he would come down on all issues. This was a play for history because Obama new at that point that Republicans would simply refuse to even consider Garland. Now Trump is doing what Obama did so he and his posse can call Dems obstructionist and totally unreasonable. It is a smart move and another way to shift the blame.

      I agree with Jeff Isaac’s questions. They would expose the Republican corruption of the process and expose what should really be considered.

      But the problem is that being too reasonable or fair at this point strikes me as a fool’s game. Short and long term folly. Even if we cannot win this fight it strikes me as necessary to send the message to both the public and congress that we will fight the fight on their terms. We will use the same tactic and they cannot count on us being fair. Or reasonable.

      Republicans in congress will be given ample reason to distance themselves from Trump regardless of what Democrats do. They are already stuck with that reality— we don’t have to help them.

      As for the public, it matters more that we play to the Democratic base that has been lost than we try to win over the three Trump supporters who are on the fence. Trump supporters have either already jumped ship or they are doubling down on their support. And the Trump media (Bannon) will play this however they want. It doesn’t matter what we do.

      We have to fight dirty and on their terms to keep people in the party and to let Republicans know that they cannot count on our fair mindedness.

  4. I don’t think I ever said “say no forever, and don’t ever stop, and only say no, and don’t rest until the nomination is dead.” I agree with what the others are saying. In my opinion, there should be an organized opposition, and it should use hearings to expose the range of issues, and also the more general assault on liberal democracy being waged by Trump. Then there should be a fiibuster. Then it will be broken. Then vote no. Let it be close. Then move on. I agree it is important to build alliances with people like McCain. But they are not lying down on every issue of concern to them. Let them make an alliance with a group that is strong and principled rather than one that is weak and craven. It’s ALL about building power, in the Senate and in the broader political world.

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