Sandeep Vaheesan is correct. When the hearings convene on Monday to consider the Supreme Court nomination of Neil Gorsuch, the members of the Senate Judiciary Committee should question the nominee closely about his views on antitrust law. Based on Gorsuch’s limited record, we probably won’t be encouraged by what they discover. As Vaheesan puts it, antitrust laws were designed for “protecting consumers and producers from powerful corporations, maintaining open markets, and dispersing private economic and political power,” but “Gorsuch’s opinion in Four Corners replaces these purposes with the goal of luring people into business with the promise of establishing a monopoly.” In fact, Gorsuch and Scalia agree that “the opportunity to charge monopoly prices—at least for a short period—is what attracts ‘business acumen’ in the first place.”
If that sounds like robber baron reasoning, that’s because it is, and our little Robber Baron Era reprise has gone far enough already without enshrining it for another three or four decades on our nation’s highest court. The attempt to steal this seat from the American people and gift it to monopolists (and it still is, so far, only an attempt) must be resisted.
The Democrats don’t have a strategy for doing this, so I will lay one out for them.
First, we have to talk about goals. Blocking Gorsuch from taking this seat on the Supreme Court will be difficult enough that it ought not be attempted at all unless the end result has some plausible prospect of being better than a simple confirmation. As many have noted, Trump had worse candidates than Gorsuch to choose from, and if Gorsuch’s replacement is as as bad or worse, nothing will have been accomplished except another display of acrimony. The goal, therefore, must be that any alternative to Gorsuch be more to the Democrats’ liking. For example, defeating the nomination of Robert Bork wasn’t the victory. The victory was getting Anthony Kennedy instead of Bork. That may not seem like the most exciting victory in the world, but it had many important consequences, including the preservation of reproductive rights and the advancement of gay rights. Keeping this goal always in mind will help us maintain focus on the steps that must be taken.
To begin with, there isn’t much sense in questioning Gorsuch on issues except in a limited sense which I will soon explain. The opposition to Gorsuch must be based on broad widely applicable principles. In this case, there are two to focus on. The first is that lifetime appointments deserve special scrutiny, and that they shouldn’t be made on the narrowest of partisan majorities. The Democrats have the right and the power to object to a candidate who may serve for thirty or more years on the grounds that they find the candidate to be out of the mainstream. In the ordinary course of events, a president who knows he will need the support of eight senators from the minority party to overcome a filibuster of his nominee would approach the leadership of the minority party and enter into negotiations. This wasn’t done in this case.
This is unusual and disturbing. When a president seeks to fill seats on district and appeals courts, he knows that he’ll need the support of the home state senators, and (especially) if those senators are from the opposing party, it’s customary for them all to come together and share lists of potential candidates who would be mutually acceptable. In many cases, red state senators were content to block any and all nominees that President Obama offered, but in the cases where judges were seated in states like Texas, Oklahoma, and Utah, those judges were approved by far right folks like Sens. John Cornyn, Jim Inhofe and Mike Lee. There wasn’t much point in Obama nominating judges that these senators found unacceptable. This is because of the blue slip custom in the Senate:
In the Senate, a blue slip is an opinion written by a Senator from the state where a federal judicial nominee resides. Both senators from a nominee’s state are sent a blue slip in which they may submit a favorable or unfavorable opinion of a nominee. They may also choose not to return a blue slip. The Senate Judiciary Committee takes blue slips into consideration when deciding whether or not to recommend that the Senate confirm a nominee.
The treatment of blue slips has changed over time. Until 2001, the Senate Judiciary Committee refused to consider judicial nominees if both home state senators returned negative blue slips. The policy changed at that point and became stricter, as the standard became that both home senators needed to return positive slips. In 2003, the policy was relaxed again, so that “a return of a negative blue slip by one or both home-state Senators does not prevent the committee from moving forward with the nomination — provided that the Administration has engaged in pre-nomination consultation with both of the home-state Senators.”
It’s really the importance of consultation that we’re looking at here, along with the principle that divisive judges are eminently blockable even by a small minority of the Senate. This allows (or should allow) the Democrats to insist that any judge they agree to consider must be somewhere in the mainstream of American jurisprudence. It should be remembered that then-Senate Majority Leader Harry Reid eliminated the filibuster for district and appeals judges out of frustration that the Republicans objected not to Obama’s nominees but to filling three empty seats on the DC Circuit Court of Appeals at all. I’ll return to this topic, too, but for now we only need to keep in mind that the blue slip system is still in place and it provides moral guidance as well as an important precedent.
The second main principle that must be applied here is that the Republicans must not be allowed to effectively steal a Supreme Court seat without any consequences. And they are trying to steal this seat. There was no precedent for denying a hearing to President Obama’s nominee to replace Antonin Scalia on the Court, and the excuse that a president shouldn’t be allowed to make a nomination in the last year of his presidency had no constitutional or precedential support. The president wasn’t offered the courtesy of engaging in consultation with the Republican leadership because Mitch McConnell announced that he would not permit a replacement for Scalia so quickly that Scalia hadn’t even had an autopsy completed on his still-warm body. Nonetheless, he listened to Republican Sen. Orrin Hatch, who recommended that he nominate Merrick Garland:
Utah Senator Orrin Hatch is widely regarded as “one of the U.S. Senate’s foremost scholars of the Constitution and the Supreme Court,” according to NewsMax. Also according to NewsMax, he said last week that while Merrick Garland would be a great selection by President Barack Obama to fill the vacancy on the Supreme Court, “He probably won’t do that because this appointment is about the election. So I’m pretty sure he’ll name someone the [liberal Democratic base] wants.”
In acquiescing to Hatch’s suggestion, President Obama was acknowledging what the Democrats must now demand that President Trump acknowledge, which is that the Senate has the right to compel a moderate nominee that is broadly acceptable to its one hundred members.
Unfortunately, the Republicans refused to consider Garland on his merits or to even have the courtesy of holding hearings on his nomination. Instead, they applied a flawed principle that didn’t apply to the man and that had no rational or moral basis other than raw partisanship. The Democrats need not act in kind, but they likewise must oppose Gorsuch on principle rather than on the particulars of his record.
The Democrats’ position should be that they will not consider any nominee for the Supreme Court with the exception of Merrick Garland. Or, to be more precise, they won’t allow a vote on a nominee unless or until they’ve had hearings and an opportunity to vote on Garland.
This may seem crazy, but it’s no crazier than what the Republicans did in concocting an argument that President Obama didn’t have the right to expect a hearing for his nominee.
The immediate objection will be that the Republicans will simply do away with the filibuster for Supreme Court Justices, but they’re likely to do that anyway if the Democrats ever mount a successful filibuster against one of their Supreme Court nominees. A tool that breaks at the exact moment you try to use it, is not a tool worth having.
The second objection will be that the Democrats will lose this fight in the court of public opinion, but the Republicans just won across the board despite what they did to Garland. It could be persuasively argued that their hardline position actually helped them mobilize their base.
But, in any case, the principle here is more compelling that the politics. If the Democrats go along with having a hearing and a vote for Gorsuch, they’ll be responding to strength with weakness. They have the power and the right to demand that Trump consult with them and nominate someone that is in mainstream. If they willingly abandon that right and that power without having it forcibly stripped from them, then they are not only losing badly on the substance and the politics, but they are encouraging more bad behavior in the future.
For this strategy to work, it’s actually important to focus much more on these principles than on Gorsuch’s record. But his record cannot be ignored entirely. It must be demonstrated that Gorsuch is not a mainstream judge. But this work should be left primarily to outside groups and the media. The Democratic leaders and the members of the Judiciary Committee should spend much of their time talking about how Garland was treated and how they weren’t consulted, and insisting that there won’t be a vote under these circumstances.
The goal is not to get Merrick Garland an actual hearing or a vote or confirmed to the Supreme Court. The goal is to sustain a filibuster based on general principles, rather than objections to this particular judge. And, then, the follow-on goal is to compel Trump and the Republicans to either take the step of eliminating the filibuster entirely or to acknowledge defeat and come to the table for negotiations over a more acceptable nominee.
If the Democrats fail to take this approach, what will happen is that they will behave courteously and responsibly. They’ll find things about Gorsuch, like his position on antitrust, to complain about. But they won’t sustain a filibuster because Gorsuch isn’t Robert Bork and defeating him won’t necessarily result in them getting a more mainstream judge to consider.
And if the Democrats put up some kind of faux-fight only to cave on the theft of this seat, they’ll not only buy themselves three or four decades more of Scalia-like jurisprudence on the Supreme Court, they’ll infuriate their base and show that they are so weak that they can be rolled, defeated and humiliated without the slightest downside for the Republicans.
I see a third possibility here, which would be unthinkable in normal times but in keeping with the current leadership:
The Democrats manage to hold together and the GOP don’t get their 60 votes for confirmation. Rather than chucking the filibuster, the GOP makes a show of being “conciliatory” to the Dems’ resolve, and in due course trot out a new nomination at least equally distasteful, and most likely worse. This might repeat a few times until they finally pull out the juridical equivalent of an axe murderer, at which point in faux exasperation they declare that there’s just no pleasing these “obstructionist Democrats” and that the only recourse is to get rid of that filibuster after all. With much great sadness and disappointment in their fellows across the aisle, of course.
As has already been pointed out, Dems lose the battle for public opinion no matter what, but otoh that’s of very little consequence beyond the extreme short-term. The opportunity to switch up to an even more extreme judge while being handed a passable excuse for ditching the filibuster is what would make this attractive for the GOP, when and if.
Understand I’m not an apologist for Gorsuch by any means, and I don’t know how he ranks on the evil scale compared to other likely picks (such as some of the names Cruz rattled off during the primaries). Neither do I mean to fault the strategy laid out here, because by my limited lights it seems like the most sensible way to proceed. It’s just that the GOP of the 21st Century always doubles down, and this would be an excellent opportunity for them to do just that.
. . . except maybe the Dems’ unanimous resolve requirement; not something they’ve proven especially good at in recent history).
In some ways this is a status quo seat. It won’t change much since this is Scalia’s replacement.
So we need to:
There is a better than 50% chance that there will be a judge in the majority in Roe and Obergefell who will die before Trump leaves office. That replacement, should it come, will bring about a revolution in American Jurisprudence. That revolution will extend far beyond just Roe.
I know that sounds morbid – but it is reality and it is a mistake to think about this seat without thinking about how that might effect the next.
I am not sure the best way to do that. It requires careful thought: but in some ways the most important political fight in the last 40 years is at hand.
The idea that Repubs will quail at blowing up the filibuster on the, say, upcoming Ginsburg seat (which would give them complete and total control of the Court for decades) strikes me as quite dubious. It is a certainty that they will blow up the filibuster to attain such an end, which would result in every “conservative” dream being realized in perpetuity.
What the Repubs pulled on Obama and his nominee was wholly unprecedented and brazenly flouted the democratic order. The Dem response to McConnell’s gambit has already been so pathetically weak as to make one puke in disgust. Thus, this is the best opportunity to filibuster a justice that the Dems will ever get, IMHO.
The Ginsburg seat will be war. Absolute all out war and I don’t believe for a second they will hesitate to blow away the filibuster.
I would have Dems boycott the Committee hearings. I would have them try and prevent a quorum.
Whether you do this on this nomination or the next or both I am not sure about.
…liberals are praying nightly for The Notorious RBG’s continuing viability, health, and intellectual acuity, to at least her full allotted (average) lifespan per SocSec actuaries! (Not that, being non-religious myself, I think that would make any difference. But who knows? I could be wrong! It could happen. And even if I’m right, that couldn’t hurt, so why not?)
Wonderful advice. Unfortunately the Dem senate leadership could have publicly espoused such an approach the day Gorsuch was nominated, or before. Note that this is how the Repubs under McConnell operate—stake out an extreme position immediately and hold to it. So one has to have serious misgivings that Team Dem will exhibit the same limp and hapless strategy of opposition as they did with the horrendous Roberts and Alito.
I’d also add Gorsuch this is (another) instance in which Dems need to emphasize that Der Trumper is a minority prez who holds the office through the failure of our constitution. Repubs refused even a hearing on the nominee of a majority-elected prez, and millions more citizens voted for HRC than voted for Der Trumper. Trumper clearly stated in the debates that he wanted another Scalia on the Court, and lost the popular vote by 3 million votes. There is absolutely no mandate for Trumper’s supreme court nominee. The pick has absolutely no democratic legitimacy–whereas Garland most certainly did (and does). Repubs have hijacked American history.
And of course there should be extensive questioning of Gorsuch as to whether he thinks Garland was a qualified nominee and whether he thought his treatment by the senate was fair. Make Gorsuch explain his views on “fairness” and “justice” and “due process” via L’affaire Garland…
have any alternative that looks better or more likely to succeed.
Alas, I see little evidence to suggest this scenario you lay out isn’t the far more likely outcome:
Running off for tennis drills, but may send this to my one ConservaDem Senator (Tester) later today with highest recommendation, highlighting the risked consequences of failing to do it.