The Neil Gorsuch Dilemma

Neil Gorsuch’s confirmation hearings will be the biggest story in the country next week. If you want to follow it, understand its context, and, most importantly, impress people at a party, hopefully today’s post helps you…

Next week is the confirmation hearing for Judge Neil Gorsuch, President Trump’s nominee to fill the vacancy left behind by Antonin Scalia on the Supreme Court of the United States. WAIT, DON’T GO! I get that was a boring sentence. Sorry if it put you to sleep. (But for any insomniacs reading, you’re welcome!) But this is not your average SCOTUS nomination. After all, very little about the first two months of this presidential administration qualifies as average. On that, both sides of the political aisle agree.[1]

Gorsuch is a completely qualified jurist who, in years past, would face few hurdles in the confirmation process. This is not, however, years past. His nomination to the bench comes on the heels of Republican leadership refusing to play ball with President Obama’s equally qualified nominee, Merrick Garland. All eyes now rest on the Democrats to see how they will respond. Just how dramatic are they willing to behave? What weapons of the Senate’s Parliamentary procedure are they willing to deploy? In short, how will they handle, and how should they handle, the Neil Gorsuch Dilemma?[2]

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Let’s briefly review how we got here:

• 1. February 13, 2016: Judge Scalia passes away. That left the Supreme Court with eight judges, including three conservatives: John Roberts, Clarence Thomas, and Samuel Alito; one swing vote moderate in Anthony Kennedy; and four liberals: Stephen Breyer, Elena Kagan, Sonia Sotomayor, and PPFA uber-crush Ruth Bader Ginsburg. Republicans quickly do the math and know that if President Obama nominated, and the Senate confirmed, a fifth liberal, the left would control the bench and communists would control America for centuries to come.
• 2. February 14: Instead of spending Valentine’s Day morning with my wife, I pen a tribute to Scalia and preview the political storm to come.
• 3. The rest of February: PPFA evades divorce papers, while Republicans plant their feet and tell the President not to bother nominating anyone. Like most presidents, he really loves being told what to do.
• 4. March 16: President Obama, under the powers invested in him by the Constitution, nominates Garland to fill the vacancy. Under normal circumstances, the next step would be hearings in front of the Senate Judiciary Committee, and if a majority of the committee approves of the nominee, the process goes to the full Senate, where another majority vote can confirm the nominee. But that’s not what happened.
• 5. March to November: Republican U.S. Senators, under the powers invested in their chamber by the Constitution, do not give their “advice and consent,” nor do they even hold a hearing. By mid-summer, Garland becomes the longest Supreme Court nominee without a hearing in American history. Rumor has it he asked to be called “The Cal Ripken, Jr. Of Judges Awaiting Supreme Court Hearings,” but the nickname was denied by Senate Republicans.
• 6. November 8: Somehow, this happened. Garland laments his failed bid to become a Supreme Court justice, Republicans celebrate the success of their plan, and Hillary Clinton sets her affairs in order in anticipation of getting locked up.
• 7. January 20: Trump inaugurated
• 8. January 31: Gorsuch nominated.

And that brings us to next week’s hearings, which will be the penultimate episode of a saga that stretches back more than a year. (After the hearings, only the full Senate vote awaits.) Remember, Justice Scalia was murdered by Barack Obama passed away on February 13, 2016, with tomorrow marking 400 days since his death. Since then, we’ve experienced the eighth longest Supreme Court vacancy in American history — and the longest since the Civil War.[3]

However, in all of those cases and for a variety of reasons, the president did not nominate a successor for almost that entire stretch. The record for longest wait time after a nomination was just 125 days until Garland broke it back on July 20. He then more than doubled that record before President Obama left the White House to start his pitiable post-presidency.

At this point, Democrats reliving the above timeline might want to throw their computer against the wall. Independents, too, might be a bit frustrated with the politics of the whole thing. Can parties in the majority just block presidential nominations for no reason other than they disagree with a judge’s ideology? Must our most independent branch become the latest casualty of this acidic political climate? What possible justifications could the GOP have for being so obstinate?

Come on, it’s the GOP we’re talking about. Of course it has justifications!

1. Republicans point out that though the Constitution gives the executive the power to nominate, it also gives the Senate the right to advise and consent to the nomination. In this case, their advice to Obama was “Go eff yourself.” Not coincidentally, they witheld consent.
2. With a veritable buffet of Democratic hypocrisy from which to choose, Republicans frequently reminded their counterparts across the aisle that two of their biggest names once held similar positions to 2016 Republicans. In what they called the “Biden Rule,” Republicans cited Obama’s own VP, who, as a Senator in 1992, asked that a potential SCOTUS summer vacancy should not be filled until after the election. (In that election, an embattled Republican president, George H.W. Bush, was getting all he could handle from a young Bill Clinton and hilarious Ross Perot.) Republicans also reminded Democrats that their own Senate leader, Harry Reid, had one decade earlier resisted President George W. Bush’s Supreme Court nominee, even pointing out that, “Nowhere in [the Constitution] does it say the Senate has a duty to give the Presidential nominees a vote.”
3. A big argument of theirs was that Supreme Court vacancies should not be filled in presidential election years. They pointed to an 80-year tradition of such restraint.
4. Relatedly, Republicans also posited that filling the seat should wait until after the election because that could give the people a voice in the process, with the presidential election acting as a proxy for that voice.

Each of those justifications sounds reasonable at first blush, but you better keep it to just the one. By blush four or five, the positions become untenable. It’s not Constitutionality and precedent that motivated Republicans here, but politics as usual.[4]

Let’s start with the technically correct assertion that the Senate has the right to not give advice and consent. The Senate can indeed withhold both. However, to paraphrase the comedian Chris Rock: “You could steer a car with your feet if you want to. That don’t make it a good f****** idea!” Just because the Senate can deny a vote doesn’t mean it should, lest the Senate never give a hearing again merely on the grounds that the Constitution gives them the authority to sit on their hands. They should have a good reason, and this isn’t it.

Nor is their attempt at citing archenemies Biden and Reid. Republicans should rethink any position where they find themselves in alignment with them. Both spent years in conservative fundraising literature; Reid in particular developed a nasty reputation among the right. To now use Reid’s words as justification is pretty strange. While it does successfully begin to point out hypocrisy on the left, it does not inoculate the right from the same charge. After all, guess who disagreed with Biden and Reid back then: Republicans, including McConnell.

As for the “80-year tradition,” this might be the weakest argument of all. First, you know something’s a bit sketchy if they had to pick a specific window of time. Moreover, it’s inaccurate. To illustrate, Amy Howe of ScotusBlog organized all the instances of twentieth century Supreme Court vacancies in presidential years:

• 1912: President Taft nominated the unfortunately named Mahlon Pitney on March 13. He was confirmed five days later.
• 1916: President Wilson made two nominations, both confirmed.
• 1932: President Hoover, in the midst of a wildly successful presidency that included the worst crash in Wall Street history, a stalled economy, and 25 percent unemployment, nominated Benjamin Cardozo, who was confirmed unanimously in March. Hoover went on to be mercifully euthanized by FDR in November.
• 1940: President Roosevelt nominated Frank Murphy, who was confirmed by a voice vote 12 days later.
• 1956: An October vacancy opened the month before President Eisenhower’s re-election. The Senate was not in session, so Eisenhower made a recess appoint. (Could you imagine the reaction of the party not in the White House if Obama or Trump tried to do that?) That appointment, SCOTUS titan William J. Brennan, had to be (and was) confirmed when the new Senate met in January.
• 1988: President Reagan’s nominee, current Justice Anthony Kennedy, gets confirmed with 97 votes. (Asterisk here, because Reagan made the appointment with one month left in 1987.)
• All told, since 1900, there are in fact no instances of an election year vacancy not receiving a successful presidential appointment, to say nothing of a hearing.

The Reagan appointment aside, we see that there were six twentieth century Supreme Court vacancies in election years. Each of president’s subsequent nominees not only got a hearing from the Senate, but they all ended up getting the job, too. Merrick Garland was afforded neither, partially on a basis of a precedent that does not exist. Moreover, if we narrow the parameters to the Republican-preferred 80 years, the sample size diminishes so greatly that it ceases to be a telling precedent, and yet it is still not accurate.[5] The only consistency we can find in recent history is that nominees always got a hearing, and therefore the Republicans did not uphold precedent — they broke it.

That brings us to the final justification: Republicans denied a hearing to the President’s Supreme Court nominee in favor of letting the people weigh in through the presidential election. This position also lacks firm footing, partly because the people weighed in by re-electing Barack Obama, but especially because this party frequently claims to value the Constitution and the vision of our founding fathers. I could write an entire post analyzing our founders’ weak embrace of democracy, but for now I’ll just say that they did not let the people decide much of anything in the federal government. Take a look at the methods through which our three branches were originally chosen:

1. Article I allowed the people to only elect one-half of the legislative branch — the House of Representatives, the lower of the branch’s two chambers. Members of the upper chamber — the Senate — were appointed by state legislatures until the 17th Amendment in 1913.
2. Article II erected the Electoral College between the people and the executive branch. State legislatures also determined the process of picking the College’s electors.
3. Article III gave the executive the power to appoint the judicial branch, and that appointment was at the advice and consent of the Senate, the one half of the legislative branch that was not elected by the people.

In other words, the founders were notoriously skeptical of pure democracy as a political system, which is reflected in the fact that they allowed the people to elect only one-half of one-third of the original federal government. If anything, they wanted the people to keep their grubby mitts off the thing, particularly the judicial branch, which was the only branch thrice removed from the voters. (Voters elected state legislators, but it was legislators who 1) appointed members of the Electoral College, which 2) elected an executive, who then 3) appointed judges.)

Thus, the fourth Republican argument is a decidedly unconstitutional approach to the problem. And if Republicans did listen to the people, polls from before Garland’s nomination (like from Fox and Pew) found that a majority of the people wanted the process to move forward to complete the bench. Then, after Garland was nominated, CNN/ORC found that two-thirds of people wanted hearings for him. The American public did have a voice, but Senate Republicans did not like what they heard.

Ultimately, all of the above justifications rely on an arbitrary New-Years’-Eve-before-a-presidential-election deadline for the Senate to consider a president’s appointment, which is absurd. Do we really buy that if Scalia died on December 31, Merrick Garland would be a Supreme Court justice, but if he died on January 1, Garland is out of luck? No Constitutional law or federal statute suggests such a demarcation in the timeline, and the supposed GOP-cited precedent does not exist.

It was never about January 1. It was about finding an excuse not to confirm, or even listen to, a qualified judge with whom they disagreed.

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That being said, what the GOP lacked in legitimate pretext it more than made up for in political maneuvering. The plan worked like a charm. Not only did they block Garland, but a Republican (kind of) won the November election and then nominated a conservative judge. It couldn’t have worked out better. Make no mistake: Neil Gorsuch is the next Associate Justice of the Supreme Court. As he promised, Trump nominated a conservative justice, and a Republican Senate will eagerly confirm him.

How we get to that confirmation, however, can still be dramatic. You can’t fault Democrats for feeling a little screwed by the developments outlined above. Indeed, many on the left have argued that the seat has been “stolen.” Liberals have put pressure on the Democratic minority in the Senate to fight Gorsuch’s confirmation. After all, goes the thinking, since Republicans started it, Democrats should return the favor.

However, a crucial difference in circumstances is that Republicans controlled the Senate when they blocked Garland, whereas Democrats are in the minority if they try to block Gorsuch. Republicans have 52 seats in the Senate, so assuming they all vote together — and they will — their majority vote can get Gorsuch confirmed.

That might relegate the Democrats to the role of gadflies, doing everything they can through Parliamentary procedure to annoy the Republican majority while slowing down the process. Their most high-profile option is the Senate filibuster, where as few as one Senator can take the floor and keep talking — about anything — in order to delay the vote.[6] Just a few Senators can rotate speaking indefinitely; while one speaks the others can eat, relieve themselves, and sleep, often at the same time. The only way to shut down a filibuster is through cloture, a word which usually motivates you to zone out of whatever article you’re reading. Cloture is just a fancy word for closing the debate, and these days it requires 60 senators to agree to move from debate to a vote. Even the infamous filibuster must end if 60 Senators agree that it should. After that, just a majority vote awaits on the issue or confirmation at hand.

But remember — the Republicans only have 52 Senators. They can’t invoke cloture, which means if the Democrats want to take turns reading the Constitution, the Declaration, or the rules of pinochle, they can. And millions of us can watch this happen on CSPAN, which is usually just watched by its skeleton camera crew and no one else anywhere.[7]

See? Dramatic, right?

However, the Senate has yet another deeper circle in its inferno: the “nuclear option.” Its process might be a little too inside baseball to get into here — I am careening toward 3,000 words, after all — but it essentially allows the leader of the Senate to suspend normal Parliamentary procedure through a series of majority votes. In 2011 and 2013, Democratic Majority Leader Harry Reid used or threatened its use in order to help Obama get past Republican interference. But guess what — hypocrisy alert! — Democrats now don’t think Republicans should use it.[8] President Trump welcomes the nuclear option, mostly because it’s in his pantheon of favorite polysyllabic words, with “tremendous,” “disaster,” “Islamic,” “radical,” and “terrorism.”

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Moving forward, Democrats have in front of them two main options:

• Option #1: Support Gorsuch — or at least get out of the way — considering he’s totally qualified for the bench. This has the merits of being consistent with what they would have wanted for Garland. However, it would infuriate liberal partisans, which is most of the Democratic donor base, for not standing up to Republicans by fighting fire with fire.
• Option #2: Impede the process and force Republicans to controversially suspend rules to get what they want. Gorsuch would still end up on the bench, but the Democrats can go home to their district and say they tried to play dirty pool but the GOP stripped them of their cue sticks. Financially it makes the most sense, but morally it’s no worse than what the Republicans did — finagle archaic rules, allude to nonexistent precedents, do it all with a straight face — only with a key difference: unlike the GOP, the Democratic minority wouldn’t get their way in the end, so they’d debase themselves for no short-term political gain.

When it comes to the Neil Gorsuch Dilemma, despite the disappointing actions of Senate Republican in the last 400 days, PPFA prefers the more mature Option 1. Perhaps a middle road exists where Democrats merely withhold their vote for Gorsuch (for no legitimate reason other than ideology and spite), allowing him to be confirmed at 52-48. That’s probably not enough to sate liberals’ thirst for revenge, but it’s a reasonable compromise.

Still, at the very least Democrats should give Gorsuch a clean up or down vote, just as they wanted from Republicans for Garland. They don’t have to vote for him, but show the American people how the government was intended to run. Trump is President, so he gets to nominate someone, and now the Senate should seriously consider the nominee. It’s what should have happened last year. If you want to control the process, vote in more Democrats.

An escalation would further drag our third, most independent branch through the political mud. So be the grownups, Democrats. Washington could use a few.

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Footnotes:

[1]Look at that: the highly respected PPFA builds consensus to bring people together. You’re welcome, America! (Click “back” button to return to main body.)

[2]Note: “The Neil Gorsuch Dilemma” is not a Big Bang Theory episode, though maybe it will be by the 26th season.

[3]You can forgive the delays in 1862 when the country was, you know, fighting itself.

[4]Remember, it’s almost always PPFA’s position that if most situational roles were reversed, each party will usually do the exact same thing they condemn. If a Republican had tried to nominate someone in an election year, it’d be Democrats dusting off the above arguments and Republicans acting offended at partisan tricks.

[5]Interestingly, if we specified the parameters of our precedent search even more and instead look to the last time we had an election year vacancy when there was a Democratic president and Republican Senate, we have to go all the way back to 1895, when Grover Cleveland nominated Rufus Wheeler Peckham to the bench. I know what you’re thinking — “That has to be the craziest name of any Grover Cleveland Supreme Court pick.” Well, think again! Ladies and gentlemen: Lucius Quintus Cincinnatus Lamar II, a name that is hilarious enough before the “II” takes it up like six more notches.

[6]The longest solo filibuster ever goes to South Carolina Senator Strom Thurmond, who for over 24 hours refused to yield the floor in his quest to stop the… wait, this can’t be right… the Civil Rights Act of 1957?! It banned discriminatory voting restrictions like the poll taxes and literacy tests meant to disenfranchise black voters. Thurmond killed time by reading state election laws and other important American documents like the Declaration, Constitution, Washington’s Farewell Address, and his grandmother’s recipe for biscuits. The lesson, as always: even raging racists think they have the law and history on their side, but damn, their mothers make good biscuits.

[7]Seth Myers once quipped that CSPAN was where Osama Bin Laden was hiding all those years.

[8]Check out this hilariously embarrassing (or is it embarrassingly hilarious?) paragraph from Politifact on recent nuclear option positions from our leaders: “In November 2013, we gave McConnell, Reid and Obama full-[flip]flops for changing their positions on whether the nuclear option was desirable. Reid and Obama favored the change in 2013 even though they had opposed it in 2005 when they were members of a Senate minority. And McConnell was willing to use the maneuver when he was in the majority in 2005 but opposed it in 2013 when he was leading the minority.” My reaction is similar to Captain Picard’s.