How the Democrats Should Fight Gorsuch’s Nomination

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.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.