New York Senator Chuck Schumer has signaled that Democrats will block Judge Neil Gorsuch from rising to the Supreme Court with the filibuster.
I hope to God he’s serious.
This is no ordinary nomination; this is not time for business as usual. To start, FBI director James Comey has testified in front of the House Intelligence Committee (after confidentially briefing members) to inform them and us that his agency is investigating Russian meddling in the 2016 election, including whether members of Trump’s campaign had any links to the Russian government.
That is, to paraphrase former Vice President Joe Biden, a BFD.
Comey testified that, in going public with this information, he was breaking with agency practice, doing so because it’s in the public interest. The FBI is looking into misconduct that rises to the level of treason from a presidential campaign. Every day, more facts unfurl about Trump associates’ shadowy connections to Russia. Why rush to confirm Gorsuch when questions implicating our very democracy are on the table?
Indeed, the Republicans shouldn’t have any problem with waiting. Majority leader Mitch McConnell took the unprecedented step of refusing even to meet with D.C. Circuit Judge Merrick Garland after President Obama nominated him to fill the seat vacated after Justice Scalia’s death. “Let the people decide,” he said. Notwithstanding the fact that the people had spoken—twice electing President Obama. Russian intermeddling in our election raises questions about whether the people’s voices truly were heard in November.
Of course, Mitchell and others will yell that the filibuster and any talk of delay are pure politics, which they (and even Gorsuch) claim have no place on the bench.
When it appeared that Secretary Clinton was poised to move to the White House, Senators Cruz and McCain said they would block any judge she nominated for the Supreme Court. Just as was true with respect to Judge Garland, the Republican party drew a line in the sand—irrespective of the nominee’s qualifications or experience, the fact that a Democrat nominated him or her was disqualifying. How nonpartisan is that?
Let’s face it. The system is broken. It’s been increasingly partisan for decades—even before fights surrounding Robert Bork (which the Republicans will cite as ground zero).
Senators delayed the nomination of then-Solicitor General Thurgood Marshall for months. He endured a grueling set of hearings in which he sparred with members about states’ rights to enact anti-miscegenation laws, the privileges and immunities clause of Article IV of the Constitution, and how Framer Elbridge Gerry understood the Constitution. Unlike his future colleague Byron White, Marshall’s hearings lasted significantly more than the 90 minutes about which Judge Gorsuch waxed nostalgic.
So, where does that leave us? The concern is that if Democrats filibuster now, they merely escalate an already harmful ideological arms race. The Republicans will “go nuclear” and eliminate the filibuster, essentially guaranteeing that future nominees will be political hacks instead of the independent jurists we need to uphold the rule of law.
Another possibility is that, in slowing things down, Democrats take the lead in recalibrating the nominations process. Perhaps they can bring along some moderate Republicans to urge nomination of a moderate, qualified candidate.
Like Merrick Garland.