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Monday, April 3, 2017

Gorsuch Update

The Democrats have their votes to filibuster Neil Gorsuch's nomination to the Supreme Court:

As President Donald Trump’s nominee for the Supreme Court, Judge Neil Gorsuch, was set to clear a Senate Judiciary Committee vote Monday advancing his confirmation, Democrats secured the votes to to filibuster the judge on the Senate floor later this week, at which point it is believed that Republicans will trigger the so-called “nuclear option” to eliminate the filibuster on Supreme Court nominees.
“I cannot vote solely to protect an institution when the rights of hard-working Americans are at risk. Because I fear that the Senate I would be defending no longer exists,” Sen. Patrick Leahy (D-VT) said at Monday’s Judiciary Committee meeting, in remarks that bashed Republicans for their unprecedented blockade of Obama nominee Merrick Garland last year.
“I’ve often said that the Senate — at its best — can be and should be the conscience of the nation. But I must first and foremost vote my conscience, vote today and later this week. My conscience will not allow me to ratify the majority leader’s actions,” Leahy said.

Chuck Schumer is giving a few Democrats the political cover to vote for Gorsuch, but to me, that's irrelevant right now. All that matters is blocking Gorsuch from being installed onto a stolen seat, and this is the first step towards that. Doesn't matter if we have 40 votes or 48.

This will be the first time that a Supreme Court Justice nominee has been filibustered. Dahlia Lithwick explains how Gorsuch made it pretty easy for the Dems to decide to do it (aside from the Merrick Garland injustice):

But paradoxically, it may also be that the airless, insular, clubby smugness of Senate Republicans made the Gorsuch hearings even more vulnerable to organized resistance. It’s odd. Nothing was really “wrong” with the hearings or the nominee. Yet somehow it all ultimately felt pretty gross. After the unprecedented ill treatment of Judge Merrick Garland, all the pretend outrage and the faux nobility of purpose of the Gorsuch hearings transformed what should have been a Senate high note into a tragicomedy of double-meaning.
The grotesque display of hypocrisy and falsity in Senate Republicans pretending they had been courteous and respectful toward Garland cast an early shadow over the hearings. That same hypocrisy pervades assertions like the one offered by Senate Majority Leader Mitch McConnell last week: “If they don’t find Gorsuch acceptable, are they taking the position the vacancy should never be filled? At all?” Oh, senator. Seriously? Remember Ted Cruz and Richard Burr promising to keep the seat open for four years, way back before the election? You can start to declaim on double standards again, well, never. And the performance of daily wounded outrage that the nominee was suffering grievous personal insult at the hands of Democratic interlocutors and tormentors? See “Seriously?” above.
Add to the mix the strange performance of the nominee himself, who came into the hearings with a media and public willing to give him the benefit of the doubt and left us with the impression that he was a good deal more prickly than he needed to be, and a good deal more coached and canned than he wanted to be. A man with a substantial and creditable judicial record walked away from the hearing room having led many of us watching with a greater appreciation of the authenticity and likability of John Roberts, who really was extraordinarily affable and warm throughout his hearings in 2005. Partly it was the sense of great privilege and entitlement that was on display: the strange contrast of Gorsuch’s pride that his daughters were “double-black-diamond skiers” and his seeming disregard for the plight of a frozen trucker.

He really is a abhorrent human being, but no matter what the reason, it's great that the Dems have pulled together to do something so important yet unprecedented, right? Not according to Paul Kane:

Normally, the losing party spends many months after a presidential election in a soul-searching mission aimed at figuring out what went wrong, usually prompting a debate about whether to try to appeal more to centrists or seek further ideological purity aimed at turning out more base voters in the next election.
Yet the 2016 election and its aftermath have increased tensions across the political spectrum, heightening the establishment vs. anti-establishment feud in Republican circles and sparking a new wave of fury within Democratic ranks.

His article is entitled "Trump’s Washington Means Civil war — for Both Parties." It's just about the silliest take imaginable on this. I think this is the first time I can think of where a pundit says "both sides do it," when, in fact, neither side is doing it!

On the Republican side, every single Republican Senator plans to vote for Gorsuch. If there's any division at all, it's over the nuclear option, not Gorsuch, and there may be none even over that. As for the Dems, as I said above, it's pretty obvious that Schumer is providing political cover for Democrats who feel they need to support Gorsuch to win reelection given that he doesn't need their votes. That's pretty normal political practice, and the Republicans do it, too.

There's an argument that can be made that this battle is unifying the Democratic party:
One of those Democrats, Senator Sheldon Whitehouse (D-RI), got a heavy dose of validation from attendees at a town hall meeting. When Senator Jack Reed (D-RI) introduced his fellow Rhode Island Senator, their constituents gave Whitehouse a rousing standing ovation for his resistance to the Gorsuch nomination:

But some on the left seem to want to make that unification more difficult. Howie Klein is sometimes pretty good, but this is silly:

While I'm not really sure the conservative Democrats really need the political cover and I'm very much fine with progressive groups telling Schumer what they think, calling the DSCC "rotten" and saying they're "pissing on" "is really counterproductive. Additionally, the article he cites says that those groups haven't even delivered the petition to the DSCC yet, so the DSCC hasn't even responded yet. That doesn't sound like "pissing" to me.

Credo, AllofUs, UltraViolet, Friends of the Earth Action, Demand Progress and other online activism heavyweights have already amassed hundreds of thousands of signatures on a petition to be delivered to the DSCC.

I, for one, love seeing Democrats say things like this:

All of that having been said, what's next? Well, if the Republicans REALLY want to confirm Gorsuch, they'll invoke the "nuclear option" -- permanently abolishing the ability for a minority party to filibuster the nomination of a Supreme Court Justice, which Mitch McConnell says he'll do . It's a move that just need approval by a majority of the Senate, and the Republicans have 52 votes. If I were betting, I'd put my money on the Republicans making it happen, but it's certainly imaginable that three Republicans could vote against it -- conservatives are the ones who tend to use the filibuster more. I haven't heard much about any Republicans going wobbly though, and the vote is in four days.

I have no idea how much merit there is to this, but I figured I'd throw this idea by Burt Neuborne out there:

In the absence of a plausible constitutional issue raised by the Gorsuch filibuster, the 2013 precedent is simply inapplicable. If the Republicans, nevertheless, insist on invoking the Nixon rule, respect for Rule XXII mandates that, in the absence of plausible allegations of unconstitutional abuse, the scripted point of order at the heart of the nuclear option be sustained by 2/3 of the senators present and voting before it morphs into a binding Senate precedent. At a minimum, unlike the sleepy Republicans in 2013, the Democratic Senate leadership should counter with points-of-order demanding debate on any appeal to the Senate that does not require a 2/3 vote. 
The Senate could, of course, choose to operate under a rule providing for changes in the rules by majority vote, or, for that matter, under no rules at all. But that’s not what the Senate has done. Instead, the senators have carefully submitted themselves to a rule about changing rules that requires a 2/3 vote. Republican senators were free to change the Senate’s rules by majority vote in Jan., 2017, during the organizational phase of the current Congress. They will be free to do so again in January, 2019, if and when they organize the new Congress. Until then, under Senate Rule XXII, in the absence of an unconstitutional abuse of the filibuster, it takes a 2/3 vote to change the Senate rules in midstream. 

Aside from flipping a few Republicans off of the nuclear option, this is the only other way I've seen in which the Dems could block Gorsuch at this point. I hope Chuck Schumer has a few ideas of his own; the confirmation of Gorsuch would be both a travesty and a tragedy.

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