If the GOP calls their bluff, and defeats Garland, they should demand that Trump only nominate someone mutually agreed to by the Senate Democratic and Republican leaderships. That is, a highly qualified moderate Republican.
Of course, the GOP will not call their bluff, and thus Democrats should filibuster and make clear that they will only support a nominee who fits the aforementioned criteria.
Thus, when Gorusch moves forward, the talking points are straightforward:
- Gorusch is highly qualified, principled, and, by all accounts, an affable guy. But so is Garland, and the GOP’s refusal to consider him was a naked power play motivated solely by partisanship.
- The GOP’s laughably transparent rationale was as follows: “The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide.” Indeed, the debate over the ideology of the next nominee was a central part of the Presidential campaign. 54% of the American people rejected Trump’s vision of the Supreme Court. By three million votes, a plurality supported Clinton’s criteria for a Supreme Court nominee.
- Under the rules of our electoral system, Trump is President. But Senate Republicans and Donald Trump have an obligation to honor their own pledge and the will of the people. We recognize that, being partisans willing to throw norms out the window, they won’t nominate a Democrat or progressive. But they can nominate someone who both parties agree upon.
- Trump promised to heal the sharp divisions he created through his campaign. Moving forward a consensus, moderate, bipartisan candidate would be an important step in that direction.
- Indeed, the GOP’s unprincipled behavior with respect to Supreme Court nominees has already taken us down a dangerous path. The only norm we had to handle the politicization of the Supreme Court was one of timing: when a vacancy opened, the President filled it with the advice and consent of the Senate. With that gone, the sole way to restore the faith of the American people in the Senate and the Supreme Court is for the President to go the bipartisan route.
As many have already noted, the idea of trying to “conserve” the SCOTUS filibuster is a fool’s errand. It will last as long as McConnell wants it to. There is no scenario in which he is willing to abandon it in this case, but not when the opportunity of securing a 6-3 supermajority arises.
Will this mean the death of the SCOTUS filibuster in 2017? Quite possibly. But, so what? This fight can only further mobilize opposition to Trump and the Senate GOP. Moreover, Trump is in a difficult position. He needs to hold his Christian Conservative base. There is no more important symbolic or practical issue for that base than the fate of the Supreme Court. Demanding bipartisanship and consensus fits with the proclivities of the majority of voters, but cuts against the GOP base. And it’s not such a bad norm. The transformation of SCOTUS into a purely political body is neither good, nor healthy, for the American system of government.