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The Gorsuch gambit


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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