The Democratic Folly In Filibustering Gorsuch

Tony Quinn
Editor, California Target Book

Democratic US Senators have now launched the first partisan filibuster of a Supreme Court nominee in American history in an attempt to defeat Judge Neil Gorsuch. They seem to be doing so because their Democratic base demands it, but the upshot will be to end any influence Senate Democrats will have over Supreme Court nominees for years to come.

By week’s end, their filibuster will result in the “nuclear option” as Senate Republicans vote to allow confirmation of all Supreme Court justices by a simple majority rather than the 60 votes required by the filibuster, and then confirm Gorsuch before leaving for their Easter break.

Democrats, led by Sen. Dianne Feinstein, ranking Democrat on the Judiciary Committee, are cutting off their noses in spite of their faces; this filibuster makes no sense and they will pay a huge price for it.

Gorsuch is by all accounts a conservative justice in the mainstream of the 10th Circuit Court of Appeals on which he sits. He has participated in 2,700 opinions in his eleven years on the court, rarely in dissent. University of Virginia professors Kevin Cope and Joshua Fischman examined his court record, and wrote, “Based on immigration and employment discrimination cases, Gorsuch appears to be roughly in the middle of the ideological spectrum and one of the more liberal of the Republican appointees in the Tenth Circuit”.

But without the Democratic filibuster, there will be nothing to stop President Trump from nominating someone much farther to the right when he gets another opening, as he surely will. Centrist Justice Anthony Kennedy may retire; liberal Justices Ruth Ginsburg and Stephen Breyer have health issues.

A possible Trump choice could be Judge William Pryor of Alabama, a protégé of Attorney General Jeff Sessions, who has called Roe v Wade, “the worst abomination of constitutional law in our history.” With no Democratic filibuster, Pryor could be confirmed with just 50 GOP votes and Vice President Pence, breaking the tie (two pro-choice GOP senators would probably vote against him).   Pryor would probably be a vote on the court not only to reverse Roe v Wade, but also to make abortion a federal crime.

So why are the Democrats going to the mat over Gorsuch when the next Trump appointee could be so much worse from their standpoint. Their reasons are strikingly weak. One is that Republican “stole” this seat by not holding a hearing and a vote last year on President Obama’s choice to fill it, Judge Merrick Garland. This is nonsense; the constitution does not require a hearing and a vote, it says the Senate must “advise and consent.” Well, the Republican Senate did exactly that, it advised Obama that it would not consent.

Then there is Minority Leader Chuck Schumer’s insistence that Gorsuch is so extreme as to be out of the judicial mainstream. Again, this is absurd, as Cope and Fischman point out, “We are skeptical that Gorsuch could be within the mainstream of the Tenth Circuit but far to the right of (Justices Samuel) Alito and (Clarence) Thomas.”

No, the real reason for this behavior is the crazed mob-like behavior of Democratic base voters who threaten primaries against anyone who does not follow them over the cliff on the Gorsuch filibuster. Sen. Feinstein surely knows this is a poisonous step for her party. But she wants to run largely unopposed for re-election next year, so the base must be kept happy or they will primary her.

This is self defeating in the extreme because Democrats probably will never regain control of the US Senate, thanks to demographic changes taking place in America. The Democratic Party is far more a coastal liberal party than it was a generation ago, but it has also largely ceased to exist in many mid-America states that it once ruled. There is no Democratic Party left in Arkansas or Tennessee, the states that gave us Bill Clinton and Al Gore.

The US Senate heavily favors the small and increasingly Republican states. For its millions of wasted Democratic votes, California elects just two US Senators, the same number as itsy bitsy Idaho where the Democratic Party disappeared 30 years ago.

And the Democratic Party fixation with sanctuary cities and transgender bathrooms further weakens it with centrist voters in states where it has sitting senators today. The respected Gonzales Inside Elections Report rates seven Democratic senators up for election in 2018 in states Trump carried as no better than toss-ups.

Four of the seven are on record supporting the Gorsuch filibuster, including Sens. Claire McCaskill of Missouri (Trump 56 percent) and Jon Tester of Montana (Trump 57 percent). Their support for the filibuster will hurt them with moderate voters next year.

Even worse may be the fate of the three Democrats opposing the filibuster and supporting Gorsuch: Sens. Joe Manchin of West Virginia (Trump 69 percent), Heidi Heitkamp of North Dakota (Trump 63 percent) and Joe Donnelly of Indiana (Trump 57 percent). The progressive far left is demanding that the Democratic Party abandon these three senators next year, which would mean sure Republican pick-up of their seats.

So the filibuster for Supreme Court justices will die on Thursday, but why stop there? The legislative filibuster is the remnant of the days when Southern Democrats used it to defeat anti-lynching laws. It is time for the whole filibuster to go.

Republicans won the House of Representatives in 2010 and have held it since; they won the US Senate in 2014 and 2016, and the presidency in 2016. Why are they allowing the Democrats to even participate in government by allowing every bill to be subject to a Democratic filibuster? The people voted them into power so they should govern.

Democrats have resorted to the filibuster on a clearly qualified judge like Gorsuch; they will certainly not participate constructively on any other Trump priorities, so why allow them to stop legislation via the legislative filibuster. Republicans won’t be able to get tax reform through as they would want it with the Democratic filibuster; they were forced to write a poor health care bill to try to get around the filibuster rules.

The Democratic decision to filibuster Judge Gorsuch is a godsend to the GOP because it makes it simple to revoke the filibuster for all judicial nominees. But ruling Republicans would make a huge mistake if they did not follow that up with a resolution to do away with the filibuster altogether, and bring the United States Senate into the 21st Century.

 

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