Judge Neil Gorsuch has the support of a majority of United States Senators to be confirmed to fill the Supreme Court seat of the late Antonin Scalia. No reasonable person (and this phrase does not include Majority Leader Chuck Schumer) offers anything but halfhearted, niggling objections to Judge Gorsuch’s impeccable credentials and superior judicial temperament. Nonetheless, Senate Democrats opposing his nomination are threatening to filibuster thereby forcing Senate Majority Leader Mitch McConnell to change the rules of the Senate to avoid a cloture vote to overrule the Democratic minority.
The avowed reason liberal Senators and their enablers in the Main Stream Media give for all their frothing at the mouth intransigency invariably boils down to one supremely overriding, yet tit for tat, grievance. By refusing to grant Judge Merrick Garland confirmation hearings last year, the current open seat was “stolen” by Senate Republicans. They cheated former President Obama out of his (third) Supreme Court pick. This charge is not even framed as a possible counterfactual supposition. They beieve it is an actual historical fact. While the Democrats’ objective may have been to get Merrick Garland on the Supreme Court during the last year of the Obama presidency, just as in your car’s rearview mirror, their object appears today much closer than it really was.
Let’s say, for the sake of counterfactual theorizing, that the Senate Judiciary Committee Chairman Chuck Grassley had scheduled days and days of hearings on Judge Garland’s nomination sometime in the spring of 2016. During those hearings, Senate Republicans would have combed through the nominee’s record and developed a few petty peccadilloes that would have stuck in their craw just as one or two Judge Gorsuch’s rulings have supposedly outraged Senate Democrats. And let’s further assume, for the further sake of indulging in pure whimsy, the Republican majority on the Senate Judiciary Committee nonetheless agreed to report Garland’s nomination out to the floor of the Senate sometime in the summer, or probably early fall of 2016 – smack dab during the waning days of a presidential election cycle. Why would the Republican Controlled Senate have voted to approve Merrick Garland at that point?
It is far more likely that Mitch McConnell and the other 53 Republican senators, invoking the Byrd/Biden rule, would have delayed the vote on Judge Garland until after November 8th because this was arguably in accordance with congressional precedent. Alternatively, Republicans might well have rejected Garland’s nomination in a straight up and down vote for many of the same politicized reasons Democrats now claim to reject Judge Gorsuch’s nomination. Or, just as likely, a group of Republican Senators would have filibustered Judge Garland’s nomination forcing a closure vote of 60 senators that would have been widely unpopular with the rest of the GOP caucus. Without even a majority, let alone a super majority, Senate Democrats could never have secured a Supreme Court seat for Merrick Garland last year.
No one stole Merrick Garland Supreme Court seat. It was never his seat to steal. The balance of partisan power on Capitol Hill last year and the imminence of the 2016 election meant that Judge Garland’s Supreme Court nomination would never have come close to US Senate confirmation, at least unless Hilary Clinton won the presidency. Not only will Democrats gain nothing from compelling Republicans to end the cloture rule requiring sixty votes to approve all Supreme Court nominations, they will be doing so without really justifying their so-called nonpolitical justification.
Democrats might reasonably argue (if they were inclined to making reasonable arguments) that rejecting Judge Garland’s nomination in any of these far more likely scenarios would have spurred the country to reject Donald Trump’s bid for the presidency. But the Democrats made the same hay (a haystack’s worth) over the Republican’s refusal to grant this nomination even a hearing. It is just as conceivable that the specter of an imminent third Supreme Court appointment from President Obama would have garnered even more Electoral College votes for Donald Trump.
But even if all the Democrats’ speculation to support their only plausible “we was robbed” argument is taken as real world fact, which I gravely doubt, stealing political advantage from Hillary Clinton’s presidential campaign is not the same thing as stealing a Supreme Court seat. What Senate Democrats in this country are really threatening now is nothing more than continuing to play politics with Supreme Court appointments exactly as they have been doing since they forced Solicitor General Robert Bork’s nomination to go down in flames in 1987 on a straight majority vote when they controlled the Senate. Playing politics does not become principled or justified because Republicans have begun playing the same game. Furthermore, ratcheting up their partisan rhetoric by accusations of thievery is nothing more than an even more hardball way for Democrats to play politics with Supreme Court appointments – a process which they never should have politicized in the first place.
Re-imagining our history is deeply ingrained in the American character. For example, look at the last two paragraphs of The Great Gatsby. The objects of our past desire always appear far closer in hindsight than they ever really were in actuality. But unwillingness to see things in the past as they truly were usually ends in tragedy as it did for Jay Gatsby. After this nomination, the tragic consequences will be the further erosion of the Senate filibuster rules that former Senate Leader Harry Reid scaled back in 2013 leading to even more partisan divisiveness in the Senate and the entire country surrounding every future Supreme Court appointment. If they force the issue on Judge Gorsuch’s nomination based on their skewed review mirror justification, Senate Democrats will be entirely to blame for tragically aggravating these ever increasingly political battles.