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The Gorsuch gambit

[ 84 ] February 9, 2017 |

Senate Democrats need to apply their new-found resolve to oppose the Trump administration at every turn to the Gorsuch nomination.  Gorsuch is a very right-wing judge: this academic analysis concludes that he’s even more “conservative” (for foreign readers who might not be familiar with current American political categories, in contemporary parlance, “conservative” means “right-wing reactionary”) than Scalia and Alito, and is only outflanked by Clarence “Bring back the glory days of the 18th century” Thomas.

All the current babble about how Gorsuch is “brilliant” and “thoughtful” is just this thing of ours code talk by Ivy League types, who are apparently relieved that Trump didn’t nominate Dale Earnhardt Jr. or one of the Duck Dynasty crew.  “Brilliant” lawyers are a dime a dozen, and the fact that Gorsuch is not a rhetorical bomb thrower like Scalia just makes him likely to be more effective in pursuing his goals, and thus more dangerous as a practical matter.

So forget that this seat was stolen fair and square from Obama: Democrats should no more vote for Gorsuch than they should vote to gut Social Security or eliminate the estate tax.   Judicial nominations aren’t like legislation, in which horse trading to make a bad bill less bad sometimes make sense.  Nominations are up or down matters, and the argument that Trump might nominate an even worse nominee is weak, since a dumber and less suave nominee should obviously be preferable, from a progressive point of view, than somebody who makes “liberal” law professors swoon even as he stylishly mounts Randy Barnett’s or Richard Epstein’s favorite jurisprudential hobby horse and rides it straight back to 1880.

Beyond all this, absent some at this point completely unforeseeable development Gorsuch is going to be confirmed even if he doesn’t get a single Democratic vote.  Mitch McConnell has already made it perfectly clear, as Richard Nixon used to say, that he’s going to ram this thing through even if he gets no bipartisan cooperation.  So the only question is whether the GOP will have to nuke the filibuster to get their way.  As Jon Chait points out, the worst possible outcome is that Gorsuch gets confirmed while the filibuster stays in place, thus leaving it to Democrats to get rid of it in the (hopefully) near future, when the next Democratic president gets to fill a vacancy with a small Democratic majority in the Senate.  (And if you think the Republicans won’t force them to do so under these circumstances, I’ve got a full tuition scholarship to Trump University to sell you).

Where I disagree with Jon is in regard to his conclusion that once the Dems force the GOP to get rid of the filibuster, they should then vote for Gorsuch.  I don’t see any point in doing that, since Gorsuch is not somebody that any Democrat should want to be on the Court, and the argument that he might be replaced by someone “worse” is shaky indeed, given what “worse” ought to mean in this context.

In light of all this, it’s easy to understand why Gorsuch is whispering sweet nothings into Democratic senatorial ears about how very upsetting it is that Der Donald is being so awfully disrespectful toward federal judges.  Trump is being awful, of course, but on the list of awful things Trump did before Neil Gorsuch agreed to accept Trump’s invitation to be nominated to the SCOTUS, Trump’s recent remarks about judges wouldn’t make the top 100 (and even these remarks are if anything less offensive than what Trump had to say about Judge Curiel last summer).

Gorsuch’s game seems pretty transparent: to get himself onto the Court while preserving the filibuster, to be used by the GOP against future Democratic administration nominees.  Nobody who has a vote now should fall for it.

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  1. PotemkinMetropolitanRegion says:

    But he’ll write such cogent, brilliant, scintillating, witty and scholarly appellate opinions before rotely overturning Roe!

    • Nobdy says:

      Brilliance without wisdom or at least ethical restraint is worse than stupidity.

      I think the fetish for “raw candlepower” as one of my profs called it is a combination of buying into Republican propaganda about “calling balls and strikes” (if law were just a technical exercise then intelligence would potentially be sufficient) and part leftover from law school competitive dick measuring. Law professors want to believe in meritocracy and that only people like them who did really well in law school are capable of being good judges so they kowtow to credentials.

      • PotemkinMetropolitanRegion says:

        I agree totally

      • liberal says:

        I think the fetish for “raw candlepower” as one of my profs called it is a combination of buying into Republican propaganda about “calling balls and strikes”…

        Agreed. I hate that shit with the heat of a thousand suns.

        Why, oh why, are Dem Senators so fucking stupid as to sometimes buy into it?

    • tsam says:

      Unfortunately all of those terms are stuck in subjective hell. I hear that kind of garbage tossed around about Scalia.

  2. so-in-so says:

    Can the GOP kill the filibuster now, then re-instate it later?

    • wengler says:

      They can do whatever they want, but really why would they? They can’t make a Democratic Senate do what they want with regard to the filibuster.

      • so-in-so says:

        On the off chance that the Dems get cold feet on ending it (again). Plus getting the MSM to pretend it is a huge break with precedence even though the GOP did it before.

        Not saying the Dems shouldn’t force this now.

        • wengler says:

          Yeah but the Repubs don’t get to end it and then put it back on the shelf. Once it’s gone, it’s gone.

          • so-in-so says:

            That was my question, what stops them re-creating it by majority vote?

            • efgoldman says:

              That was my question, what stops them re-creating it by majority vote?

              When they’re in the majority, there’s no reason to, unless they feel like they’ll have to shut Tailgunner Teddy or one of his buddies (does he have any?) down.
              When they’re in the minority, they can’t.

            • ASV says:

              Nothing, but it’s meaningless then. Given it can be destroyed by majority, it only really exists as a norm. Once they show it can and may be broken, then who cares whether it’s officially on the books?

    • Seamus says:

      Yes. And if they were smart, they would enshrine the filibuster in statute, rather than Senate rules, during 2018 lame duck session.

      • wjts says:

        Could the Senate constitutionally enshrine its rules in statute, though? For some reason, I think they can’t, but I am not a law-talking guy.

        • Colin Day says:

          By the Constitution, each House gets to make its own rules. I’m not sure how the House and President could stop the Senate from reinstating/eliminating the filibuster.

      • Murc says:

        You can’t do that; it would be unconstitutional. The Senate has the constitutional right to make its own rules and procedures, internally, and a statute would impinge on that right because it would put the power to do so in the hands of the House and the President.

  3. Gator90 says:

    forget that this seat was stolen fair and square from Obama

    I don’t think anyone should be forgetting that. Republicans certainly wouldn’t let anyone forget it if the situation were reversed. For the rest of time, every Republican who made any public reference to the deceased justice’s replacement would include the phrase “stolen seat” at least once in every sentence. The previous president’s nominee, the one who couldn’t get a hearing, would be forever mourned as a martyr and his name would be turned into a verb.

    • Let’s work towards making this a thing.

    • efgoldman says:

      I don’t think anyone should be forgetting that. Republicans certainly wouldn’t let anyone forget it if the situation were reversed.

      For better or worse, Democrats just don’t and won’t act like Republiklowns.
      We need a political version of William Tecumseh Sherman to lead some scorched-earth politics.

    • UnderTheSun says:

      this seat was stolen fair and square from Obama

      So the Republicans took the “seat” honestly and within the rules. What’s wrong with that?

      • I know that when I think of doing something “honestly and within the rules”, I think of making up a “rule” that never actually existed and then using it to justify doing whatever the fuck I want. Politics isn’t Calvinball. Of course, your previous comments here indicate that we shouldn’t expect you to be honest, either, so I’m not even sure why I’m wasting my time.

  4. AMK says:

    talk by Ivy League types, who are apparently relieved that Trump didn’t nominate Dale Earnhardt Jr.

    Do we know what Dale’s politics are? Might be an improvement.

    • Nobdy says:

      He appears to support immigration and have opposed Trump’s anti-immigrant comments so I would assume his politics are better than Gorsuck’s.

    • ZakMcKrackenAndTheAlienMindbenders says:

      Dale Jr is actually a top notch jurist whose views lean to the left on most crucial issues. Campos is just taking a cheap shot at him here because he and Earnhardt have wildly different views on Dartmouth v Woodward (1819) which are probably at least partially attributable to Earnhardt’s tendency to be overawed by the legacy of Daniel Webster, after whom Earnhardt has modeled much of his post-NASCAR work. To be candid, it seems a shame to malign someone who could otherwise be an ally over quibbles like this, but then I suppose the left never COULD resist a circular firing squad.

  5. wengler says:

    Make them blow up the filibuster. Nothing less. Any Senator that votes for cloture should encounter an automatic primary challenge.

    I mean, honestly, if you are willing to vote for the person that stole the spot for Obama’s nominee, why do we even have political parties?

  6. Nobdy says:

    I genuinely thought Trump might go for Don Willett who is half judge half talk show host in demeanor, loves social media, and is nicely reactionary.

  7. Russell Arben Fox says:

    I mostly think Paul is right, but I’m not absolutely convinced he’s right; I can see the argument for obliging the Republicans to kill the filibuster only when/if a vacancy that would actually change the current ideological arrangement on the court (i.e., Ginsburg or Kennedy) happens to appear. Either way, I do hope–and Gorsuch’s make-nice campaign makes it seem likely that this could be pulled off–that the Dems on the committee get Gorsuch to comment, at length, on the record, during the hearings about his high opinion of Merrick Garland, and his low opinion of McConnell’s year-long delay strategy. Yeah, it would be a cheap rhetorical rope-a-dope, but if, for whatever reason, defensible or not, the Dems elect not to force the nuclear option for Gorsuch, it’s one that could probably be easily achieved, and would provide some solid campaign lines for 2018 and 2020.

    • Aexia says:

      Forcing him to give his opinion of Trump tweets under oath might bait the toddler-in-chief into throwing a tantrum and withdrawing the nomination.

    • Joe_JP says:

      I can see the argument for obliging the Republicans to kill the filibuster only when/if a vacancy that would actually change the current ideological arrangement on the court

      I saw the argument on the threads here in the past. Didn’t convince. Kill it now, especially when you have something more than ideology on your side and continue the current resistance. Waiting isn’t worth the candle.

    • Jeffrey Kramer says:

      I really don’t understand the reluctance to make the Republicans kill the filibuster. It sounds to me like this:

      “We don’t want him on the court, but if we filibuster him, the GOP will abolish the filibuster.”
      “And why would that be a bad thing?”
      “Because then we won’t be able to stop people we don’t want from being put on the court!”

      What am I missing?

      • liberal says:

        You’re not missing anything. Because, in addition, the filibuster has largely been used as a tool of reaction, anyone who thinks we should keep our powder dry is a fucking moron.

      • Joe_JP says:

        “What am I missing?”

        An argument was made here in the past that it would be better to do it later when Trump might be at a lower level of popularity and there could (damning word) be more political blowback to Republicans for ending the filibuster.

        It seemed like weak sauce. Even then, it wasn’t that the filibuster later on would actually work to save us from Gorsuch II if Kennedy or RBG retires (in that case, maybe dies is a better word to use). A few make that argument, I guess, but they are deluded.

        • rm says:

          Like most voters would even notice.

          The political value of filibustering now and making them kill it is to energize Democrats and to send a message to elected Republicans.

          Waiting just looks like losing to the vast majority of voters who are watching the game without know all the rules.

          • Jeffrey Kramer says:

            I agree. Even if filibustering wasn’t a no-brainer on the merits, bringing it to a head over Gorsuch should have more potential political value. After the GOP abolishes the filibuster in order to seat Gorsuch, point out that they’ve just blown up a tradition they always pretended was deeply necessary to Constitutional government, and why? so they could get the benefits from stealing the seat which they obtained, not only by spitting on tradition, but by violating their explicit Constitutional duty. (Or something like that, but snappier.)

    • liberal says:

      I can see the argument for obliging the Republicans to kill the filibuster only when/if a vacancy that would actually change the current ideological arrangement on the court (i.e., Ginsburg or Kennedy) happens to appear.

      Bullshit. The norm was that Presidents get to pick vacancies as they appear, and their picks get approved. If the ideological balance of the court changed, that was too bad.

      Anyone Dem votes for cloture is an idiot.

      • rm says:

        Yeah, I’m inclined to say that the “current ideological arrangement” is one where Garland is on the court — so, since Garland has been garlanded, putting a right-winger on there is not replacing Scalia, it’s replacing Garland. It’s illegitimate like Trump — legal but illegitimate.

  8. I know that there are stupid lawyers, because I have met plenty of them, but it is pretty rare for someone to say that a lawyer is anything but brilliant. The thing with judges is that it is rather difficult to know whether a given judge is actually brilliant or just capable, even at the appellate level. For most jurists their days of scholarly writing are long behind them– they wrote a Note or two back in law school, and ever since have been advocates, bureaucrats or judges. As a result all we really see of their legal chops is the stuff they have produced under very narrow circumstances, in response to very carefully circumscribed questions. Here’s what we know about Gorsuch: he thinks that stores that sell yarn and glitter and glue guns have religions.

  9. tsam says:

    Battle Two in the war has been won.

    Appeals court sustains suspension of the travel ban order.

    Looking forward to the inevitable Tweetstorm with megasadz from the Hair Fuhrer.

  10. howard says:

    i will take gorsuch’s supposed qualms about trump seriously as soon as he says “in fact, i am so disgusted that i am withdrawing myself from consideration and recommend that president trump nominate judge myrick garland.”

  11. ASV says:

    Nothing makes me understand the Principled Progressive’s desire to blow up the liberal coalition more than reading Jonathan Chait.

  12. MAJeff says:

    For conservatives, legal “brilliance” simply means being able to convince white bigots they ain’t bigots.

    • efgoldman says:

      For conservatives, legal “brilliance” simply means being able to convince white bigots they ain’t bigots.

      Not very difficlt, since they all deny it anyway. They’re just looking for validation and a safe space to be total assholes.

  13. Just_Dropping_By says:

    In light of all this, it’s easy to understand why Gorsuch is whispering sweet nothings into Democratic senatorial ears about how very upsetting it is that Der Donald is being so awfully disrespectful toward federal judges.

    So, your theory is, what? Gorsuch was lying and thinks that it’s swell when politicians publicly attack judges’ integrity? I don’t know Gorsuch, but such an attitude would be completely out of character for every judge I’ve known, state or federal, regardless of their political affiliation.

  14. Joe_JP says:

    Sen. Manchin, while talking about giving him a chance, has said that he thinks sixty votes is a good idea for Supreme Court nominees. If eight Democrats vote for cloture, it would be pretty bad.

    Anyway, yes, why vote for him if the filibuster for judicial nominations is ended? A major part of the opposition now is his ideology. Now, I’m sure a few Dems WILL vote for him. But, most voted against Alito. And, that was not a Trump nominee to a stolen seat. Any marginal difference here is clearly balanced out by the Democrats having even less reason to give any quarter.

  15. MacK says:

    Suppose they ask questions of Gorsuch and Trump hates the answers – can Trump withdraw Gorsuch nomination in a fit of childish pique….by twitter???

  16. Bloix says:

    The argument is that he’s a reactionary but he won’t vote to make Trump Il Duce. The next guy might be a genuine fascist. I’m not persuaded myself but that’s the concern.

    • Morse Code for J says:

      If Trump moves to become dictator in perpetuum, he won’t be looking to the Court for validation. And we won’t be settling that issue through litigation.

  17. No Longer Middle Aged Man says:

    Another reason to force McConnell to nuke the filibuster is that it requires him to twist arms of maybe a few Repub Senators who don’t want to nuke the filibuster.

    Note/question re Senate procedure: I am assuming that since the filibuster is a Senate rule it requires a majority of the Senate to vote to overturn it, that McConnell can’t just do it on his own. Two questions then:
    1. If the vote to abandon the filibuster is a tie, does the VP as the presiding officer of the Senate but not, I think, an actual member of the Senate, get to vote in order to break a tie on something like a Senate rule?
    2. Can the motion to consider a change to Senate rule itself be filibustered?

    More generally, “independent thinking principled Republican Senators” (i.e., concern trolls) like Collins and Murkowski plus maybe even a few others may actually not want to overturn the filibuster or at least have the stain on their hands (cf, DeVos). So while it’s probably too much to hope that they might actually vote against overturning the filibuster, forcing McConnell to go nuclear will both force him to use political capital to rope in the wavering members of his flock and puncture (or at least dent) the aura of independence that those wavering members receive from Washington media fluffers.

    • Redwood Rhiadra says:

      Yes, the VP can break ties. And no, the motion cannot be filibustered if the presiding officer invokes the “nuclear option” (which is the whole point of the nuclear option).

      Going nuclear will have no political consequences – Reid did it in 2013 to eliminate the filibuster on non-SCOTUS appointments.

  18. dp says:

    ‘“Brilliant” lawyers are a dime a dozen.’

    Truer words were never spoken.

  19. smartone says:

    “Brilliant” and “Thoughtful” Judges don’t sit in stolen seats

  20. LosGatosCA says:

    Nobody who has a vote now should fall for it.

    Is Pat Leahy still in the Senate?

    Whenever I see a Republican on a charm offensive (see, also, too, Roberts)

    I’m reminded of the young bull (Scalia) and the old bull.

    The Republicans are starting to find their legs again with respect to keeping their heads down while fucking everyone over and popping up only to smile nicely when ever anyone asks them about it.

  21. Theophrastus Bombastus von Hoehenheim den Sidste says:

    So Campos now buys into the idea that opposition to Ivy League scholars is an essential component of “The Left.”

    Huh. Well. Is this populism?

    Bad enough that Loomis has been spreading this rich fertilizer on the soils of what ever.

    You people own the internet Left. That’s great. But when push comes to shove, you will find another Left lurking in places that you can not see: dedicate to Justice, and Righteousness, and all the good causes, but shorn of the idiot baggage that you people tie around the neck of “the Left.”

    Anyway, see y’all at the polls.

  22. bw says:

    Re Paul’s second paragraph, in 2005 I used to work with the daughter of someone who is now on the bench on a US federal appeals court. Bush nominated Roberts and she assured everyone (it was a pretty left-leaning workplace) that her dad said he would be just fine. I mostly think she’s a good person, but over the last 12 years I have probably restrained myself from calling her up and yelling the equivalent of “fuck you and fuck your dumbass dad” at least a hundred times.

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