Democrats cheered lustily when Michelle Obama, speaking at last summer’s Democratic National Convention, said of the battle against the Republicans, “When they go low, we go high.”
It was good advice then, and it is good advice now as Democrats consider how to respond to the nomination of a highly conservative and highly qualified judge to fill the Scalia seat on the Supreme Court.
Republicans went low when they refused to allow a Senate vote on Merrick Garland, President Obama’s nominee for the same seat for 11 months, abrogating their constitutional duty based on a dubious theory about the illegitimacy of court nominations in a president’s final year in office. It was a theory that made a mockery of the Republican’s professed commitment to strict adherence to the Constitution and a strict construction of its meaning. Their behavior was an outrageous anti-constitutional power grab that robbed Americans of the service of a distinguished jurist, a dedicated public servant and, I can say from personal knowledge, a wonderful man.
So I understand the instinct that Democrats now have to avenge Republican irresponsibility by doing to Gorsuch what Republicans did to Garland—using the filibuster to deny him an up or down vote. But as good as it may make them feel and as much as it will provide a rallying cry for the Democratic base, it would be a mistake. It won’t help the country, it won’t help the people and causes they represent, and it won’t help win the next election. Allow me to explain.
First, Democrats need to understand that American politics is asymmetric when it comes to using obstructionist tactics. As the party that argues for the necessity and competence of government, fomenting even more political dysfunction is not a smart long run strategy. It’s bad for the brand.
More significantly, killing the Gorsuch nomination will not prevent President Trump from filling the Scalia seat. If Judge Gorsuch is rejected, Trump is certain to nominate someone who is just as conservative, and probably less qualified. The public won’t tolerate leaving the Scalia seat vacant for four years—nor should it. As Democrats themselves argued until this week, the country needs and deserves a Supreme Court at full strength.
Some argue that Trump’s thinly veiled Muslim ban has now created a moral imperative to use all possible means to defeat the Gorsuch nomination. There is irony to that, too. One reason some liberals oppose the Gorsuch nomination is his uncompromising opinions on protecting the religious freedom of evangelical Christians and Catholic nuns. But the same liberties would be guaranteed to Muslims who Democrats are now so eager to protect.
The biggest risk in turning the Gorsuch nomination into the next round of partisan blood feud, however, is that will only serve to reinforce party loyalty among Senate Republicans whose defection is the key to derailing the Trump Express. There are eight to ten Republicans who have criticized and opposed Trump in the past, who have serious doubts about his temperament and his fitness to be president and who have dared to participate in bipartisan compromise. But it will be much harder for Democrats to convince these Republicans not to hew to the party line on issues like Obamacare, taxes, and immigration if Democrats have themselves just acted in a purely partisan and vengeful manner on a qualified Supreme Court nomination. The immediate challenge is to encourage those Republicans to defect as several did this week on the nomination of Betsy DeVos to be education secretary. It is not drive them back into their partisan corner.
There is a better way to avenge the treatment of Garland and call attention to Republican hypocrisy. Democrats could demand, as a condition for not mounting a filibuster of the Gorsuch nomination, that the Senate pass a resolution declaring that no vote will be held on any Supreme Court nomination in the final year of President Trump’s current term. Republicans would be hard pressed to oppose such a resolution, given the Garland precedent they laid down, while Democrats would gain their pound of political flesh. Democrats could still demonstrate their distaste for Gorsuch’s Scalia-like jurisprudence by posting 48 votes against his confirmation.
Too many Democrats have convinced themselves, I fear, that there is no longer any political reward for putting the national interest above partisan interests or trying to restore a measure of political civility and compromise. They are wrong about that. With every day of the Trump presidency, the public is coming to a deeper appreciation of the harm that is done when leaders routinely resort to lies and threats and ignore long-established processes and political norms. Ordinary people are now so outraged by that kind of behavior that they have begun taking to the streets in spontaneous protest. The best way for Democrats to tap into that outrage and turn it to political advantage is not to mimic that Republican behavior. It is to go high when they go low.