Thursday, March 30, 2017

Filibuster Gorsuch

Of all Trump's nominees, Neil Gorsuch is the most important to block, as he could easily spend 30 years on the Supreme Court. I would've loved to block Jeff Sessions, but the filibuster doesn't work on the Cabinet. It works on the Supreme Court, and Democrats should use it.

Gorsuch likens his own judicial views to those of Scalia. Ronald Reagan named his mother to run the EPA so that she could tear it apart. She slashed its budget by 22% and rolled back environmental regulations. Given this, his potential opposition to executive power strikes me as a minus rather than a plus, as he's basically a machine built from birth to overturn executive action against climate change.

I never saw the 1930s Germany path to doom as a big risk under Trump. An independent judiciary is a deep and central American institution, and it's served us well in blocking things like Trump's travel bans. We can probably muster 6 votes on the Supreme Court against really crazy Trumpy stuff -- there's 4 progressives, Kennedy's libertarian streak, and the old institutionalist Roberts. Whatever Gorsuch's virtues might be, they're small enough not to win us any decisions we wouldn't win already.

I fear the more traditionally American antidemocratic horror -- Republicans suppress the black vote and win elections even though a majority of the public opposes them. Gorsuch's emails show a favorable attitude to the work of Hans Van Spakovsky, who makes his living doing vote suppression for the Republican Party.

If Democrats filibuster, we'll see if McConnell can successfully end filibusters on Supreme Court nominations (the 'nuclear option'). He'll need 50 of his 52 senators to do that. 3 of them supported preserving the filibuster back in the 2005 Gang of 14 compromise. So it's not clear that he has the votes.

One possible endgame resembles the 2005 compromise: 3 Republicans and some moderate Democrats work out a compromise where the filibuster is preserved, Gorsuch is replaced with a more moderate judge, and Democrats agree to accept the moderate.

There's also the possibility of negotiating a much better nominee with Trump directly if Gorsuch fails. Gorsuch owes his nomination to a deal Trump made with evangelicals to win the election. Recognize here that Trump doesn't have deeply held views about jurisprudence. He just knew the nomination was a trinket he could barter for evangelical support in the election and gave them their man. But if the nomination fails and Trump's alliance situation becomes much more fluid after other failures (Obamacare repeal among them), other deals are possible. After demonstrating their power by blocking the nomination, Democrats might be able to negotiate for a nominee significantly more liberal than Gorsuch.

In any event, the tradition of generally accepting qualified nominees from the other party ended with Merrick Garland. Democrats shouldn't pretend otherwise. With a lifetime appointment at stake, they should play for the most moderate nominee they can get.