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Democrats and Gorsuch

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Democrats don’t seem to be united on how to deal with the nomination of Neil Gorsuch, which is “no way, no how.” Richard Blumenthal gets it:

Sen. Richard Blumenthal (D-CT) said Sunday that he would filibuster Supreme Court nominee Neil Gorsuch and “use every tool that we have” if Gorsuch fails to disavow litmus tests on abortion and guns, among other things.

Gorsuch’s multi-day confirmation hearing is scheduled to begin at 11 a.m. ET on Monday.

Blumenthal, a member of the Senate Judiciary Committee, began by saying on MSNBC Sunday that Gorsuch would have to tell the committee that a ban on any religion is unconstitutional. Judges have said that religious bias motivated President Donald Trump’s recently blocked travel ban.

“Even if he can’t comment on the specific immigration case, he has to at least show that he respects the principle that the government can’t discriminate on the basis of religion; that a Muslim ban would violate the Constitution,” he said.

Blumenthal said he would hold Gorsuch to the same standard on Roe v. Wade, which set a precedent establishing abortion as a fundamental right, and gun control laws.

Michael Bennet on the other hand:

Supreme Court nominee Neil Gorsuch will get some bipartisan cover at his confirmation hearing next week — even if for just a few minutes.

Gorsuch, a Denver native, will be introduced by both Colorado senators — Michael Bennet, a Democrat, and Cory Gardner, a Republican — before he delivers his opening testimony to the Senate Judiciary Committee on Monday. It’s long been tradition that a nominee’s home-state senators give the introduction during the high-profile confirmation hearings. The third person who will introduce Gorsuch is former Obama acting solicitor general Neal Katyal, who has written op-eds and letters to the committee endorsing Gorsuch’s nomination.

Aides to Bennet, who has faced political pressure to vote for Gorsuch, stressed that his introduction has no bearing on whether he will support President Donald Trump’s first Supreme Court nominee. Indeed, the late Sen. Frank Lautenberg (D-N.J.) introduced then-nominee Samuel Alito before the Judiciary Committee in 2006, but ultimately voted to filibuster him.

Gorsuch comes from a Colorado power elite family and his mother was Reagan’s absolutely nightmarish EPA director. So he is getting a lot of pressure from the Colorado political class. But who cares. He was just elected to a second term. Come 2022, no one is going to care how he voted on Gorsuch on the right because they aren’t going to support him anyway. Colorado is moving pretty rapidly to the left and voting to confirm is only going to hurt him with his base. Moderates won’t care either way in five years. While I realize Bennet has not said he will vote for Gorsuch, he’s also been fairly favorable in his public comments. He needs a lot of pressure to vote no. Gorsuch will almost certainly be confirmed. Given that it is a stolen seat, it needs to happen with zero Democratic votes which forces Republicans to blow up the filibuster.

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  • NoMoreAltCenter

    Do you guys have the talking points ready for when he is voted in with no friction? I need to know why confirming Young Scalia without a fight is actually good strategy by the Dems and anyone complaining is a dudebro Purity Pony.

    • Cheerfull

      If there is friction will you publicly note you were wrong?

      • NoMoreAltCenter

        Friction meaning forcing a filibuster, not just Bernie and whoever is trying to run for President voting “no”? Then yeah, I will

        • Jordan

          No you won’t.

          • NoMoreAltCenter

            Actually, yeah I will.

            • Jordan

              Nah.

        • Cheerfull

          well there’s always a middle case. Bernie and likely Democratic candidates probably amount in total to about 5-6 Senators. Forcing a filibuster would require at least 40 senators to stand on the filibuster. If it’s between 6 and 40 does that count as friction?

          Or are the Democrats hopelessly worthless if they can’t manage 40+?

  • Crusty

    Perhaps this is trite or lame, but I’d like him to be asked when during a president’s term the power to nominate supreme court justices terminates.

    • Boots Day

      Quite. Every Democratic senator’s questioning should refer in some way to asking why Gorsuch deserves this seat more than Merrick Garland does.

      • los

        I like your additional requirement that Gorsuch comment about McTurtle’s Hyper-borking[1] Garland Rule.
        :-)

        _________
        1. “Borking” as redefined by conservatives. In reality, Bork Borked himself.

    • (((Malaclypse)))

      “Shouldn’t you be ashamed for personally gaining from the subversion of democracy that happened with the rightful nominee?” would work as well.

    • dsidhe

      It’s more bitter than trite, but my Senator’s staffers seemed less than amused. Also harried, if that helps. I just want them to make the point that apparently it’s not okay to nominate a SC justice while a presidential campaign is going on. And, hey, one is. Pointlessly and expensively and stupidly, but since campaigning is all Trump knows how to do, I guess it’s what he’ll do for four years. Considering they stole a SCOTUS seat and then Trump basically stole the presidency for three months before his inauguration, I want to see dems at the very least causing some uncomfortable recognition that this is not normal.

      • Rob in CT

        Yes.

      • I agree. I am still deep-down angry about what happened with Garland and I want someone to stand up and shout about how wrong it is and was.

    • I don’t think that a supreme court justice should be nominated if we are within two years of a Senate election, because a potential change in Senate majority would alter the selection process.

      (and yes, I know that some portion of the Senate comes up for election every two years. That’s the point of this stupid fucking argument)

      • los

        We’re 16 years from at least two presidential election winners we can’t predict. All confirmation hearings must be cancelled to allow the American people to speak!

      • los

        2152’s presidential election winner hasn’t even been born yet! Traitors must be stopped from suffocating the voters’ voice!!!

    • Just_Dropping_By

      “Dumb” is more like it, because it doesn’t prove anything — Gorsuch would presumably say a president has the power for their entire term to make such nominations, but that the Senate determines its own rules and can decide when, how, or even whether to take up such a nomination.

  • Jason Steed (@5thCircAppeals on Twitter) has suggested that the filibuster be saved for a nomination that threatens to upend the balance of the Court from where it was with Scalia.

    He doesn’t explain why exactly, but perhaps the public would view the GOP going nuclear more unfavorably in that context.

    Idk if I agree with that, but it’s a thought.

    • If we have learned anything from the last 8 years, it’s that total obstruction has no negative political consequences.

      • Chetsky

        Erik, any suggestions for what we can do, other than call our senators?

        [I’m dreading when feinstein votes for this shitheel ….]

        • Go occupy her office.

          • NoMoreAltCenter

            Please do. And videotape it.

          • Phil Perspective

            Has anyone seen Russ Feingold’s statement? I know he’s not in the Senate but for a guy who used to be against holding up a nomination just because C- Augustus nominated him, he sure has changed his tune. It seems he’s still paying attention to goings on in Washington, D.C., even if he won’t be returning there any time soon.

        • SatanicPanic

          Feinstein needs to go. The fact that she won’t comment is pathetic.

      • Dennis Orphen

        ……for republicans.

        • los

          Erik Loomis says:

          … total obstruction has no negative political consequences.

          Dennis Orphen says:

          ……for republicans.

          The Tea Stream Media has already maxed their outrage toward everyday sane people, Democrats, and ‘RINOs’.
          All that remains for the TSM is to call for mass violent insurrection and terrorism.

    • Rob in CT

      Meh, I see no reason to “keep our powder dry” because I think the first time the Dems use the filibuster to block something the GOP really wants, the filibuster is toast.

      So if Dems don’t use it now and hold off until another SCOTUS nomination is made (gag), the results (re: SCOTUS) will be the same. The optics… oh, hell, I don’t really know for sure but I doubt the Dems would get any credit at all for waiting.

      • los

        Senate members can best guesstimate whether McTurtle et al will go “nuclear” now or later

        The effects of Gorsuch will be locked in longer than affects of legislation will be.

        How does anyone compare the “weight” of Gorsuch’s effect to the weight of legislation?

    • JKTH

      Most of the public is unaware of what the Supreme Court balance is now, what it was with Scalia, or how it would would change with a new person so that doesn’t make any sense.

      • dsidhe

        Yeah, I think this argument is a lot less clearcut than “This seat could have been filled by Obama’s nominee if republicans hadn’t been unprecedentedly awful about it”. Combined with the near-certainty that the GOP will get rid of the filibuster as soon as it’s attempted anyway, now seems like the time from an optics standpoint.

      • Dennis Orphen

        Most of the public is unaware

        You can just stop right there.

    • Joe_JP

      I recall this line when there was talk of filibustering Roberts, let us wait for O’Connor retiring when it really matters. The result was a fake filibuster [20 or so votes] of Alito. And, even that by the usual suspects was made out to be egregious.

      Anyway, this line didn’t convince when our Broncos fan commenter here suggested something like it, it doesn’t convince now. Garland provides some cover, to the degree people will be convinced, as does general continual opposition to Trump in general. Fear of “the public” here seems dubious too. I’d be more concerned with how a sign of weakness will look to the Democratic base & even the public too. Enabling Trump is all connected in my view. He gets a win here, I expect some more press about how things has taken a turn in his legitimacy.

    • Arouet

      This is clearly not a crazy position, and I think it is how the Democrats almost have to go now (the time to lay the groundwork of a unified message of resistance against Gorsuch in the Senate seems to be about a month ago, imo, and certainly before the hearings started). However, I think it was the wrong one. We have no idea when the next vacancy will come up. I think whenever the Dems invoke the filibuster to prevent an appointment that could alter decades of jurisprudence in a remarkably conservative direction, the GOP will immediately eliminate it. They’ll have to, because their base will demand it and they actually respond to their base’s demands because they’ve learned the consequences of failing to do so. But that only helps Democrats if the nomination is close enough to an election that they can use the GOP move to eliminate the filibuster and seat a whackadoodle as a cudgel. If it happens in 6 months, I think that’s way too far. If it happens December 2018, we’ve kept our powder dry for nothing.

      I also think it’s far harder to link any other seat to the Garland fiasco than it is to link this one. If they pick a qualified jurist, it’s hard for the Dems to hold fire now and invoke the Garland example then.

      • Cheerfull

        And if there was ever going to be success at the Democrats running on a Supreme Court issue you should have seen that in 2016 with the blocked Garland nomination. And really nothing came of it.

        There’s no real reason to think that fighting and losing over the filibuster in some future year (stay alive RBG!) is going to be a significant boost in an election year. But simply folding now, will be a definite harm to the Democrats.

    • Spider-Dan

      To a certain extent, it doesn’t really make sense to nuke the filibuster over a seat that was blocked by a GOP-controlled Senate; even without the filibuster, Garland would not have been appointed.

      But ultimately, I agree that the filibuster needs to go, and it’s unlikely there will be a more stark example of why than Garland… not because the filibuster prevented his appointment, but because it shows that the playing field needs to be leveled. The Democrats are too interested in Keeping Government Running to have the backbone for the kind of stunt that the GOP pulled with Garland, so we might as well eliminate the part that requires a spine.

      • los

        Spider-Dan says:

        kind of stunt that the GOP pulled with Garland

        and the running bludgeoning that McTurtle and mob hit a few years of Obama appointees.
        That bludgeoning eventually forced the so-called Reid Rule (thus actually the McTurtle Rule).

        .
        I don’t know how complex the filibuster tradition had been before Mcturtle’s obstruction, but I had (only generally) hoped that Senate Democrats had revised filibustering to force a diminishing returns effect.

        When centrists regain the Senate, hopefully they will recreate the filibuster, but with less stark “Black or White” effect.

    • los

      ThusTweetedAnderson says:

      Jason Steed (@5thCircAppeals on Twitter) has suggested that the filibuster be saved for a nomination that threatens to upend the balance of the Court from where it was with Scalia.
      He doesn’t explain why exactly, but perhaps the public would view the GOP going nuclear more unfavorably in that context.

      Most Of The Public can’t even sense whether a prospective SCOTUS is better, worse, or equivalent to Scaligula.

      Foxnoose etc. have told the teacucks that Gorsuch is half a beer keg better than Scaligula.

    • msmarjoribanks

      I firmly believe that the public will not care if the Dems are as obstructionist as possible or if the Republicans blow up the filibuster to deny the Dems any say.

      That being the case, I am not sure it matters if the Dems filibuster Gorsuch, but in the theory that the Republicans don’t want to blow up the filibuster if they can avoid it (but will) and it’s not guaranteed that Trump gets a second appointment, why not filibuster this one. I see no downside (but also can’t get worked up about Senators who maybe disagree).

    • sleepyirv

      The general public doesn’t care too much about the Supreme Court (See Garland, Merrick)

      The general public DEFINITELY doesn’t care too much about the filibuster because it’s a convoluted parliamentarian procedural tactic that no one understands.

      Republicans nuking the filibuster to replace RBG with neo-Lochnerian might get liberal riled up, but that’s about it. And I don’t need liberals need another reason to be riled up.

      Democrats might as well be principled and stand up for Garland. ‘æ

      • los

        “Principled”, not principled.

        Opposing an activist fanatic is principled.

    • ASV

      If the public cared about or paid attention to SCOTUS nomination process even a little bit, Democrats would control the Senate and the White House today.

  • Incontinentia Buttocks

    This is on Schumer. It was up to him to develop a united strategy from his caucus and to whip Senators into line who didn’t go along with it. He chose not to, deciding instead to wait (at least) until the hearings. Coordinated responses — like we saw from the GOP to the Gorsuch nomination — require coordination from leadership. So far, the Senate Democratic leadership has decided not to have such a coordinated response.

    • Murc

      It was up to him to develop a united strategy from his caucus and to whip Senators into line who didn’t go along with it.

      I agree that it is up to Schumer to develop a united strategy… but what leverage would he have over those who didn’t go along with it?

      Serious question. My understanding is that our caucus is organized differently than the Republican caucus and that Schumer actually can’t remove people from committees or deny them assignments they qualify for. The removal of earmarks, plus our minority status, severely limit his ability to dole out pork. Most Senators have their own statewide fundraising apparatuses already in place and are not hugely dependent on DSCC money, and threats to deliberate sabotage a much-needed Democratic Senator are not going to be all that credible anyway.

      What’s he got left?

      • Jordan

        Well, why is he the majority leader?

        Possible: his peers owe him lots of favors due to fundraising and committee assignments. But you say nah to that.

        Possible: his peers think he is the best one among them to coordinate their response to Trump. But you kinda say nah to that.

        Possible: he is the most telegenic member of the caucus to trot out in front of the tv shows: nah.

        Possible: He is a viable future presidential candidate and they want to support that: nah.

        So …. why do you think he is the majority leader? (personally, I think 1 mostly and 2 some).

        • Murc

          Well, why is he the majority leader?

          He’s not.

          I’m going to do the sensible thing and assume you meant to type Minority Leader and got your wires crossed.

          Possible: his peers think he is the best one among them to coordinate their response to Trump. But you kinda say nah to that.

          I emphatically say nah to this, because Schumer’s selection as Minority Leader occurred well before Trump was elected or, indeed, the nominee. I don’t think “best one among us to coordinate a response to Donald Trump” was any kind of consideration when deciding who should succeed Harry Reid.

          I think Schumer is Minority Leader because he’s well-liked and well-respected among the caucus, it was thought he could do the job, and he was tapped on the shoulder by the previous one. He put in the time and now he has the job.

          I don’t understand what any of this has to do with what possible leverage he might or might not have over a recalcitrant Senator, which was of course the issue at hand.

          • Jordan

            heh, yes, thank you for the courtesy :).

            And this wasn’t supposed to be an attack or anything, I’m as honestly curious as you here.

            I emphatically say nah to this, because Schumer’s selection as Minority Leader occurred well before Trump was elected or, indeed, the nominee. I don’t think “best one among us to coordinate a response to Donald Trump” was any kind of consideration when deciding who should succeed Harry Reid.

            Fair enough, I was just throwing up as many possibilities as I could randomly come up with.

            I think Schumer is Minority Leader because he’s well-liked and well-respected among the caucus, it was thought he could do the job, and he was tapped on the shoulder by the previous one. He put in the time and now he has the job.

            This needs serious unpacking and support. Why should the fact that he is well-liked or well-respected matter all that much? What is “could do the job” and why does that point towards Shumer rather than anyone else?

            You are right that he was tapped on the shoulder by Reid, and maybe that is enough. But why did Reid do that? Inevitability? Or just because Reid thought he could push an agenda and/or fund raise better than anyone else?

            I don’t understand what any of this has to do with what possible leverage he might or might not have over a recalcitrant Senator, which was of course the issue at hand.

            That is easy: because it is about fundraising (the point you neglected), which Schumer is undeniably good at, and thus could provide a significant source of leverage.

            • Jordan

              ehh, stupid no edit button. I don’t know if its about fundraising, obviously. Maybe it is “do the job”. But *what* is that, and is Schumer doing that with Gorsuch? Etc.

  • Boots Day

    Bennet didn’t move to Colorado until he was in his 30s, and most of his ties to the state are to the political elite – he got his start working for the billionaire Phil Anschutz. So I’m not surprised that he might be getting “political pressure” to support Gorsuch, but it’s certainly not coming from his rank-and-file voters.

    If he does vote for Gorsuch, I’m pretty sure he will live to regret it.

    • snarkout

      I was just going to say this — both Gorsuch and Bennet are coming out of the Anschutz factory of deplorables. (I have it third-hand that they’re socially friendly, to boot.) I don’t like the end results that the Republicans got, but I wish Democratic politicians were at least a little afraid of disappointing their base.

  • Joe_JP

    Neal Katyal, who repeatedly has defended human rights including in the current travel ban litigation, introducing someone who was deep in the Bush Administration (including helping to defend torture), is sickening. Oh, as noted in the new “Take Care” blog, Gorsuch would likely vote to uphold the travel ban as well.

  • Thrax

    I guess my hesitation is about the scope of the filibuster blowup. There’ll be a lot of pressure on McConnell to kill it outright, not just for nominations, as that would both (a) give them Gorsuch and (b) substantially improve the odds of ACA repeal passing (not to mention other wish list items like Dodd-Frank repeal, which won’t even get off the ground without the abolition of the filibuster). There definitely aren’t 60 Senate votes for full repeal, and there may not be 50+1 for the current bill with no chance of the non-reconciliation stuff passing.

    So I dunno if this is the time to do it.

    • dougok

      Thrax is right. What is to be gained by forcing Republicans to blow up the filibuster? It will just make it easier for them to pass every part of their agenda.

  • Given that it is a stolen seat, it needs to happen with zero Democratic votes which forces Republicans to blow up the filibuster.

    This will be in my notes to my senators.

  • thispaceforsale

    there will be no negative political consequences for any senator filibustering gorsuch.
    There also will be no negative political consequences for Mitch changing the rules to simple majority for confirmation.
    There might have been either if we didn’t have a dumpster-fire-in-chief, but the republicans have become the murder-suicide party. And been rewarded by this strategy for 20+ years.

    The strategy on gorsuch is simple: “no: garland, trumpcare, muslim ban, next question.”

  • Joe_JP

    So no more editing window?

    Sigh. This was one of the few places I could look at my posted comments and edit it after the fact. I simply appear unable fully to be able edit beforehand, needing to see the final posted comment. Also, repeatedly, I have a ‘wait I forgot something’ moment.

    Back in my day, we had editing windows.

    • Stag Party Palin

      Write it in Notepad and paste it in after you spellcheck, Wiki-check, ask your Mom, show it to your dog, and let it sit overnight.

      Profit!!

      • Joe_JP

        The dog always disagrees with me. It’s annoying.

      • Caepan

        This suggestion positively reeks of effort.

        Wear wood the internets bee without missspelingz? And who fact-checks their postings? (Probably elitists!) And since we all live in basement apartments in our parents’ house, Mom’s job is to keep us supplied with Mountain Dew and Cheetos, not proofreading! Also also, I have a cat, so this line of edititing is unsupported. QED!

  • My local friends and I are pushing on this, but I know that Bennet practically ran away when asked about Gorsuch at his recent town halls. He doesn’t want to answer.

    Time for some more phone calls and postcards and emails…

  • msmarjoribanks

    Hmm — what I want from this is less filibuster or not as the Dems NOT giving Gorsuch cover and making sure it’s clear to anyone paying attention (not that I think most people will be) that Gorsuch is an extremist.

    It’s crazy that it’s still the Republicans who consistently vote based on the Court whereas even with the Garland nonsense the Dems won’t in nearly the same numbers. That really should change.

    • jim, some guy in iowa

      re: Rs voting based on Supreme Court while Ds don’t, so much- I think it’s the religion thing. Gives them a way to take a unifying or blanket approach the Ds can’t- the latter ends up making different arguments to the various sections of the base which ends up blurring the overall effect. I don’t know if that means conservatives have a better working grasp on their version of intersectionality or what

      • ASV

        It’s not just that, although it’s a doorway to the importance of the Court. When Republican candidates talk about judicial nominees, conservatives say yes, that’s important, it’s why we support you. When Democrats do it, many on the left decry it as fearmongering or hostage-taking. More scare tactics about Roe being overturned!

    • los

      msmarjoribanks says:

      making sure it’s clear to anyone paying attention (not that I think most people will be) that Gorsuch is an extremist.

      I agree. Non-con Senators, MSM, and pundits should establish a track record of “predicting” extremist activist justices. This requires “pre-exposing” more than only federal justices.

      Then every time that justice later makes an activist decision, remind the public of the prediction.

      Reiterate reiterate reiterate.

  • sleepyirv

    The calculus for Senate Democrats from Red/Purple states seems straightforward:

    Vote AGAINST Gorsuch, and suffer no electoral repercussions (no one cares). But Gorsuch ends up on the Supreme Court anyway.

    Vote FOR Gorsuch, and get liberals angry with you. Say the vote shows you’re an independent thinker who won’t give in to “liberal radicals.” Win plaudits from the local press and independent voters.

    I know what most of them will pick.

    • ASV

      41 of 45 Dems (including the likes of Evan Bayh and Joe Lieberman) voted against Sam Alito in an environment that was much more amenable to waffling on things like this, so you might want to hedge your bets.

  • efgoldman

    Gorsuch would have to tell the committee that a ban on any religion is unconstitutional.

    He wouldn’t be the first conservatron SCOTUS nominee to lie in his hearings.

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