(With much Regret) I Lean Pragmatic on Gorsuch

[Tom Rinaldo]

I'm not happy about it. I'm not happy about him. I know that Republicans stole that seat by refusing to even give Garland a hearing. I hoped and believed that we would, as a nation, do much better than Gorsuch when President Hilary Clinton submitted her nominee to fill the vacancy on the Supreme Court. Instead Donald Trump got to choose a nominee, and Gorsuch is having a Senate hearing as I type this.

Now, in real time, what options do Democrats have? Many progressive voices who I admire argue for total resistance, and make a compelling case for just that. Theft should not be rewarded. Unfortunately I believe theft will be rewarded. Barring new, highly unsettling and gravely negative revelations, Gorsuch will be confirmed to sit on the Supreme Court. Simply put, I believe he will either win 60 votes for confirmation with the support of a least 8 Democrats, or the filibusterer will be abolished, and Gorsuch will be seated with a simple 51 vote majority threshold passed.

There is, however, a third disturbing option. Republicans could allow Democrats to successfully filibuster the Gorsuch nomination, and have his nomination rejected. Then of course Trump would be forced to choose a new nominee. That, I suspect, might be when Republicans finally trigger the nuclear option. Not before Gorsuch goes down in defeat, but after he does - in time for Trump's second nominee to sail through the Senate under simple majority rule.This scenario offers some real advantages to the Republican conservative hard right. Something tells me that, with the filibuster already abolished, the next nominee Trump would make would make Gorsuch look like Snow White in comparison. That would suit Trump's vindictive temperament.

For starters, everything I have read so far seems to indicate that Gorsuch is just about as close to the mainstream of legal thought as any person that a Trump/Pence/Bannon/Ryan regime will ever nominate. I would not be surprised if risking his defeat was their tactical intent all along, offering up the classic win/win scenario for Trump and the Republican Party: Under option A) Gorsuch breaks a Democratic filibuster and gets seated - sowing discord within Democratic ranks in the process. Trump and Republicans celebrate, and bask in the "glow" of winning significant bi-partisan support for the elevation of a "highly respected" and "respectable" conservative jurist onto the Supreme Court.

Then there is option B) whereby Democrats sustain a filibuster and force Trump to submit a second nominee to fill the Supreme Court vacancy. I suppose this scenario would be made moot should Senate Republicans abolish the filibuster prior to an actual vote on Gorsuch being held. Of course they very well might do just that, since Democrats do not have the means to stop them. Whether Republicans would abolish the filibuster to allow Gorsuch to win confirmation, or allow him to go down to tactical defeat instead, is uncertain. What seems clear to me however is that the Republicans will not allow two consecutive Trump nominees to be defeated by Democratic filibusters. One defeat they could use as a justification to trigger the nuclear option, and thus allow them to install a more extreme right nominee onto the Supreme Court instead of Gorsuch while simultaneously blaming Democrats for the abolishment of the filibuster because it was abused to block an "eminently qualified" Justice from being seated. Two nominations blocked by Democratic filibusters however would be viewed as a sign of their weakness, and Republicans will not allow that to happen.

A less radical Republican regime than the current one might conceivably move further toward the center with their second Supreme Court pick, should Gorsuch be rejected for not having sufficient bipartisan support. There certainly is modern precedent for that political course of action. But there is no modern precedent for this Republican regime. One way or another either Gorsuch, or someone even worse than him, will be seated on the Supreme Court this year. We are only 60 days into this presidency and Republicans hold the majority in the Senate. Unlike the Republicans with Garland, Democrats do not have the tools needed to run out the clock on this nomination. Should Republicans be punished for stealing a Supreme Court seat? Yes of course. The best time for that was the 2016 elections where they should have been held accountable for their flagrant disregard of the Constitution. Instead they retained a majority in the Senate and Trump became President. These are unfortunate facts.

When Republicans, one way or another, fill this Supreme Court vacancy it will restore the balance of power on the Court that existed before Scalia died. The next vacancy may shift it, and we don't know when that will occur. For all we know that could occur late in 2018, roughly at the same point in the presidential election cycle as when the Scalia vacancy happened. If the filibuster no longer existed at that point Republicans would not allow a little thing like hypocrisy stop them from quickly stacking the court in their favor. They may not however be willing to risk the political backlash of so blatantly changing the long standing traditional rules of the Senate, in the thick of a Presidential election, to ram through a controversial nominee.

And then of course there is the long term game, of wining back control of the U.S. Senate, which is essential to our ability to change the direction that the nation is now heading under unified Republican control of government. Not only must we wrest some Senate seats currently held by Republicans away from them, we need to retain the seats we now hold in purple and red states that Trump won in 2016. In a lot of ways the old axiom that all politics is local still holds true. Here in New York State where I live there is no political risk for a Democratic Senator to filibuster the Gorsuch nomination, rather the political risk would lie in the refusal to do so. I can't say with certainty though that the same is true for all of the Democratic U.S. Senators facing reelection in 2018. For all of these varied reasons, as things stand now, I am not certain that progressives should seek to punish every Democratic Senator who refuses to filibuster Gorsuch when his confirmation vote is finally held. His hearings have just started. For all I know new negative revaluations about him may have emerged while I was composing this post. But the big picture as I see it now remains ugly, with no great options open to us. It is easy to play a strong hand in Bridge, playing a weak hand is a much greater challenge.

[leftstreet]

1. All Trump nominees and appts should be frozen

A President under investigation for ties with Russia, including possible election fraud, gives up his/her right to do jack shit

[Tom Rinaldo]

2. I agree they should be

But they won't be. Yes, that sucks. But Republican majorities in Congress are not just going to roll over and play dead.

[Amishman]

3. There is no Constitutional mechanism for that and would likely mean civil war

They are putting someone in that empty seat. Filibuster and they will go nuclear.

What I would want is a deal. Ginsburg gets to step down and Garland takes her seat in exchange for Gorsuch's confirmation. Might as well try to get something out of all this. Ginsburg is 84. Actuarial tables would put her life expectancy at 6.8 years. I'd hedge that low due to stress and prior health issues. That puts the odds of Trump appointing Pryor to the court way too fucking high

[Tom Rinaldo]

4. If there is a way to make that totally binding I would back that

I would not trust their mere word however that they would get around to confirming Garland after Gorsuch got in. Maybe if 20 Republican Senators signed a blood oath - we would need that many to have some cushion against last second treachery.

[milestogo]

5. In the long term there is nothing pragmatic about giving in to their evil ways.

Dems need to stand firm in every instance.

[Tom Rinaldo]

6. I think reality is more nuanced than that

And I don't like it a bit. I am an unrepentant idealist who thinks it is always worth fighting for what is right. But battles like Pickett's Charge and Gallipoli do not advance any just cause, just carnage. When the stakes are highest so too is the need to make clear eyed tactical choices, when a costly setback only increases long term mass suffering.

How do you see a possible ending to this Supreme Court battle other than what I outlined in the OP? I ran through the possibilities I could think of. How do you see it playing out that would be more advantageous to our side? If we could build enough public support so that enough Republican Senators would agree to not move on this confirmation while a cloud hangs over this White House, I would be all for that attempt. Do you think that is an attainable goal?

However if Republicans chose to fill that vacancy now they have all the tools that they need to do so with essentially anyone they want. We have, at the very most, one shot at derailing a Republican nominee through a filibuster during Trump's presidency, and after that the next nominee will only need 51 votes to be confirmed. Do you differ in that read? I tried to weigh our options in light of that. Your reply doesn't touch on what happens next if "Dems stand firm in every instance". I think it is important to consider that in every case.

[milestogo]

11. Republicans don't do nuance.

They refused to consider Obama's nominee. That is the only nominee Dems should be willing to consider.

[NCTraveler]

13. "Republicans don't do nuance."

They are good at not doing nuance. We should learn from that.

[Generic Other]

7. Thanks for looking at the long plan

What you say makes sense. Buying time and stopping the next nominee using the filibuster maybe means another Democrat or two in the Senate. Especially if Trump keeps making his base have buyer's remorse.

I am trying to believe not all Americans on the other side of the aisle are corrupt or insane.

[MFM008]

8. Let him submit

A nominee every week.
Fu*k him and keep the seat open.

See the problem is when THEY go LOW
They WIN.
When we go HIGH
We watch then run our lives and kill our planet.
I'm encouraging my senators to vote NO.

[Tom Rinaldo]

18. There are 52 Republicans in the Senate

Plus Pence gets to vote if there is a 50/50 tie. A majority of the Senate can change the Senate rules so that it would only require a majority of the Senate to confirm a Supreme Court Justice. What you suggest if pure fantasy, unless you believe that the Republicans in the Senate will not abolish he filibuster if that is the only way they ca fill that seat.

For that seat to remain open Republicans would have to accept Democrats filibustering multiple Trump nominees without ever lifting a finger to change the Senate rules to take that veto power away from Democrats. I don't see that happening, do you?

I am not urging Democrats to support Gorsuch. I can't tell you how pissed I will be if one of my New York Senators does. And all Democrats should state why Gorsuch is the wrong person to seat on the Court. But I am not sure it is worth it asking Democratic Senators in Red States to walk the political plank over this one if that is what it comes down to. And I stated my reasons for that doubt.

Look, I was a strong Bernie supporter during the primaries, and after Hillary won the nod I spent a good deal of time debating some BoB's on another site over why we could not allow Trump to become President. The Supreme Court was high on my lists of reasons I gave, because a Republican President with a Republican Senate has all the power needed to stack the court for a generation if multiple vacancies open up. I tried to think through our best case scenario for stopping that from happening, that's all.

[MFM008]

37. No maybe we should just

Give BLOTUS everything he wants??
That and the Obamacare repeal are going to be a couple BIG wins for maggot.
I say postpone it as long as possible or fillibuster.
IF they go nuclear they will pay dearly for it.
They won't be in charge forever. The pendulum swings.

[lindysalsagal]

39. Yup. Strategy matters more than ideology in many cases. Wanna save up for a worse one.

And it is easy to imagine a worse one.

[msongs]

9. there is a nominee in line before him. he should wait his turn. never surrender to nazis nt

[Moostache]

27. Amen. The vote is "no" for ANY nominee not named Merrick Garland.

If that means the seat stays open for another 400+ days or 800 or 2200, then so be it.

The GOP dishonored themselves and the Constitution itself with their theft of this seat on the court. If Gorsuch is so super-duper grand, then he should be brought back for consideration for the NEXT open seat. OR...if the GOP prefers, they can hold hearings for Garland and defend why he is unqualified or unfit and attempt to vote him down, but they cannot pretend it never happened or that Garland was ever treated fairly.

The nomination of Merrick Garland was never rescinded (that I recall) meaning the court vacancy has 2 appointees for 1 open seat. At a bare minimum, the nominations of Garland and Gorsuch should be heard, considered and voted on in the order they were received.

ANYTHING else is unacceptable. Full stop.

If the GOP decides to go full nuclear and force the issue, then dissolve the union, abandon the existing government and start the process of replacing the entire thing....by any means necessary. A group of thuggish asshats held that seat hostage out of pique and bullshit and to gain what they hoped would be ideological advantage. If they want to destroy this country so badly that they are willing to blow things up to suit their needs of the moment instead of the needs of the country for history, then burn it down and start over because what would be left is quite simply not worth having or defending.

Given the choice between half a molding melon (status quo) or a chance at a fresh new melon (new republic by whatever means necessary), I choose fresh every time (every day of the week and twice on Sundays). The time to coddle and abide the Republicans is well past over. We are dealing with the survival of democratic republican governance, the survival of truth as a barometer for judging value and the very survival of life on this rock at all. The time to compromise and play nice SHOULD have ended in 2001, in 2017 the clock is too low to do anything but full force resist.

[Tom Rinaldo]

30. I would be thrilled if we could manage to keep the seat open instead

If that is an option I'm all for it. You think the Republicans would refuse to nuke the filibuster if we keep rejecting nominees through it? Or that we can muster 51votes to stop any non Garland confirmation if they do?

[Tatiana]

10. Any Democrat willing to vote for this thief of a stolen seat should be punished.

Yes, I know there's Manchin.

But there's simply not an excuse for any other member of the Democratic caucus. This is the time for Schumer to start twisting arms. It's all hands on deck. This is a defining issue and this is a critical vote. Gorsuch represents every single evil, treacherous, thieving action the Republicans have taken. If there is a Democrat who votes for this nominee, I really believe they need to be shamed right out of office. This issue is that important. He's young and he will shape policy for decades.

We can't afford that. Leave the seat vacant until the bastard occupying the office is impeached.

We have to go on the offensive and take a position of strength, even if we don't have the numbers. The public will eventually respond to Democrats being on the right side of history.

[NCTraveler]

12. Gorsuch is mainstream and is qualified in just about every way for the job.

Suck but there it is. I agree with just about all you have written in the op.

The point of contention(not with your op) is the fact he is a Trump appointee and what happened to Obamas nominee. Many aren't able to see past the assumption that Trump will be impeached or how Republicans treated Obama and his nominee. Both of those are reasonable points as well.

I think this has to be one way or another. All out war, or send his ass straight to the bench. War is preferable to me at this point.

[Demsrule86]

22. Don't make it about Gorsuch...make it about the theft of our nomination ...refuse to consider anyone

except Garland...and unless people start calling about health care, we will lose that too.

[NCTraveler]

23. "make it about the theft of our nomination "

All no votes from Democrats. All. What they did to our nominee was not acceptable in any way.

[Demsrule86]

43. I agree completely as you may have noticed...I am not one to tilt at windmills

as my posts indicate...I have a reality based reason for this view. The GOP will do this over and over and probably worse if we let them get away with it. We must fight...so our next president can govern...I would end the filibuster which may have served the GOP well but not us. It also takes away accountability for Senators as well.

[Moostache]

29. The choice is this...

1) Go to the mattresses
2) Go to your knees

If the Democrats in any way, shape or form choose option #2, then the party must rally to purge them from its ranks or the party will die, period, full stop.

Option #1 is the ONLY option for the Democratic Party if it is to remain a viable political entity and not the Washington Generals to the GOP's Globetrotters for the next 50 years.

This is extortion and theft and it cannot be rewarded under ANY circumstances. If the GOP forces it through, and the Democrats cannot use that to win back the House and Senate in '18, then the party is too feckless and too weak to remain a national party.

Democrats who vote for this are dead to me, more so than anyone who voted for the Iraq war resolution or any Reagan budget. This is the line in the sand and there is no forgiveness for those crossing to the other side.

[NCTraveler]

31. I think it's "go to the mat" nt.

[Moostache]

32. Godfather reference...its definitely "go to the mattresses"...

Caporegime Peter Clemenza commenting on acting Don Santino Correlone's temper and proclivity for vengeance:

CLEMENZA: That Sonny's runnin' wild. He's thinkin'a going to the mattresses already. We gotta find a spot over on the West Side
http://www.urbandictionary.com/define.php?term=going%20to%20the%20mattresses

Also popularized by Tom Hanks in "You've Got Mail" (90's movie with Meg Ryan)


Point being, it is time for all out war by the Democratic Party to defend the very things we say we believe in or we may as well cease to exist in some kind of neutered state.

[NCTraveler]

33. "War is preferable to me at this point. "

Never heard of "go to the mattress". Love learning something knew. I'm very familiar with "go to the mat".

https://www.google.com/?gws_rd=ssl#q=go+to+the+mat&*&dobs=go%20to%20the%20mat&spf=577

[DemocratSinceBirth]

14. He makes Trump look normal for picking him. We need to get back to Russia and Chump Care.

I would vote against him on principle and move on.

[Blue_Tires]

15. Fuck 'em... I want 100% obstruction for as long as possible

This go-along-to-get-along shit is just what the GOP is counting on

[DemocratSinceBirth]

16. Wouldn't you rather have Russia and Chump Care dominate the news?

This guy is smooth. He makes Trump look normal for picking him. Anything that makes Trump look normal is bad for us.

[msanthrope]

17. Fuck that. nt

[cry baby]

19. You make good points, and I'm usually a pragmatic person...

but I'm inclined to feel the need to play by new rules, rules that the repubs have written and won with.

My head agrees with your assessment of the situation. My gut instinct tells me we lose when we give in time and time again and play fair and nice, like dems usually do. We are losing ground in almost every state. Repubs gain by any means necessary and maybe we need to consider playing by the "any means necessary" rule.

I'm really torn.

[Demsrule86]

21. I am not ...being 'nice' gets us nowhere...the GOP refused to let Clinton govern and Obama.

They capped off eight years of obstruction by stealing our SCTOUS pick...do not give in fight them. This is a bad guy too. We may not win, but if Dems want to win ultimately,they need to go down swinging...make the GOP pay a price for every damn thing they do.

[Tom Rinaldo]

24. I'm torn too. That's why I used the term "leaning" in the OP

Emotionally I want to go with your gut reaction. And I know that emotions are helping sustain the resistance right now, which is critically important. If we didn't have such a closely divided court I would go with emotion without blinking. But so much hangs in the balance with another vacancy after this one highly plausible before the next presidential election. And if the next seat that opens belongs to a current liberal there goes a woman's right to choose among many other fundamental rights. That would require a filibuster, but only if one was still an option - and that possibly could gum up the works long enough to keep a seat open until the next presidential election - if the vacancy occurs close enough to the 2020 elections. Many ifs, I know. But I also know that if Gorsuch is stopped that Trump will still fill that seat, quite likely with someone worse. He is only 60 days into his term, and after him is Pence and then Ryan in progression, if anything happens to Trump.

What I firmly reject as nonsense is the repeat calls to "keep the seat open". We can't' keep the seat open, for more than a few months at most. We do not control the Senate. Reality is a bitch some times.

[Demsrule86]

20. This is a stolen seat and I don't care who or what Gorsuch is...he is a bad guy by the way...a woman

hating corporatist...we need to fight...make them use the nuclear option so we have a chanced to remove this undeserved pick a later day...we may not be able to stop him. But we will lose more picks if we make it easy.

[Mistwell]

25. I worry

I am worried that the continued focus on Garland will backfire.

Let's say Ginsburg retires. I know we all hope that does not happen, and she is taking good care of herself, but it could happen.

Now let's say Trump, to avoid opposition, nominates Garland.

Now what? Hard to continue to oppose Garland as a replacement after all this anger and outrage over him not getting a hearing continuing into Gorsuch's hearing.

And yet, though I like Garland fine, he's no Ginsburg. He would not be a good replacement for Ginsburg in terms of ideology. The person who fills Ginsburg's seat should be further to the left than Garland.

I worry we're setting ourselves up for just this scenario.

That doesn't mean I have a good answer. I don't. Just saying, I am worried.

[tazkcmo]

28. He never ever

did or did not do something to avoid opposition. The man has a 70 year history of doing things only if it benefits him in any way at all. Opposition, embarrassment, appearances, etc mean nothing. He'll nominate Garland the day Garland pays him to do so.

[Amishman]

35. He'll never pick Garland (short of a larger deal) but your point overall is valid

Garland was a decent pick to try and get bipartisan support, he's a centrist. A great choice today but I want to do better with Democrat controlled oval office and senate.

When we take back the white house in 2020, the more fuss we make about Garland now the harder politically it will be to advance anyone else. Imagine if Trump gets Gorsuch in my nuclear option, Pryor takes Ginsburg's seat, and when we finally get control back we are massively pressured by our own base to put Garland in Breyer's seat because we spent four years saying how amazing Garland is and how he should be on the court.

[sharedvalues]

26. Go after him in the press. Remind America seat was stolen

10 D senators. 5 talking points. Go repeat the talking points. Just like the GOP does.

[forjusticethunders]

34. Nah fuck that

The reactionaries are going to get their own taste of Massive Resistance.

[OnDoutside]

36. Tom, the reality is that Democrats HAVE TO get their supporters out to vote all the time

not just every 4 years. Resist all the way, fight as dirty as the Republicans have done to Garland. Let the chips fall where they may.

[louis c]

38. I agree with you. I'm pragmatic, too.

Just think. Ted Cruz supported Donald Trump after his adolescent tweet disparaging his wife and after suggesting that Ted's father, Raphael Cruz was some how involved in the JFK assassination.

you know why he did that?

Because he's pragmatic and now he gets his Supreme court justice.

We have to wait to fight another day.

[Bettie]

40. OK, so this time we give in

because we don't want to lose the filibuster...then next time, we give in for the same reason, and then the time after that...and so on.

Sounds like a great plan. Just awesome.

[Takket]

41. if you give the bully your lunch money today, I'm sure he will leave you alone tomorrow

[Bettie]

42. Exactly

Dems need to push back as hard as they can.

These people (and I use the term loosely) don't understand compromise. They only speak the language of obstruction and for far too long, Dems have just laid down and let them walk over them. NO MORE.