Democrats’ Gorsuch Filibuster Puts Them on the Wrong Side of History

When New York Sen. Chuck Schumer announced his intention to filibuster Obamacare, it didn’t come as much of a surprise. After all, he’d long ago telegraphed that his decision on President Trump’s nominees would be based in politics, not qualifications.

“If they don’t appoint someone who’s really good, we’re gonna oppose him tooth and nail,” Schumer told MSNBC’s Rachel Maddow. “It’s hard for me to imagine a nominee that Donald Trump would choose that would get Republican support that we could support.”

“We are not going to make it easy for them to pick a Supreme Court justice,” he continued.

The problem for Democrats is that President Donald Trump did appoint someone who is really good. There has been no question that Judge Neil Gorsuch is anything but qualified. He has degrees from Columbia, Harvard and Oxford University, he’s clerked for both the D.C. Circuit and the U.S. Supreme Court, he was Deputy Associate Attorney General, and a Tenth Circuit judge. Throughout his career he’s built a reputation as a renowned writer, a keen legal mind, an affable jurist, and, a willing participant in the national debate.

But none of that came to matter. After Gorsuch’s impressive performance on Capitol Hill Sen. Schumer moved the goalpast, arguing that he “is not a neutral legal mind but someone with a deep-seated conservative ideology.” This, as Kimberley Strassel writes in the Wall Street Journal, is patently ridiculous. 

“Not even Mr. Schumer denies Judge Gorsuch possesses a singularly gifted legal mind and is eminently qualified for the court,” explains Strassel. “His objection, instead, is that the nominee is ‘conservative.’ This is apparently now a disqualifying attribute for any Supreme Court justice.”

Sadly, that’s not even the most absurd standard that Sen. Schumer invented out of thin air.

“If this nominee cannot meet the same standard that Republicans insisted upon for President Obama’s nominee, 60 votes in the Senate, then the problem lies not with the Senate, but with the nominee,” Schumer said on the Senate floor.

Notably, just minutes after those comments Schumer returned to the floor to “correct the record” about his earlier comments, acknowledging that Republicans didn’t filibuster President Obama’s nominees and thus couldn’t have “insisted” on 60 votes. Dan McLaughlin, writing for National Review, digs into the utter lack of historical support for Schumer’s claim:

“As I have detailed at some length before here and here, only once in Senate history, in 1968, was a Supreme Court nomination thwarted by less than a majority of the Senate, when the nomination of Justice Abe Fortas to Chief Justice (and the concurrent nomination of Homer Thornberry to replace Fortas as Associate Justice) was put to a cloture vote, and got 45 ″yes” votes and 43 “no” votes. Notably, Fortas and Thornberry didn’t get 50 votes, and as LBJ’s top domestic-policy aide, Joseph Califano, has recounted, this was a face-saving vote for Fortas and Lyndon Johnson after damaging new information about Fortas’ ethical troubles emerged.

The Fortas precedent supports caution and delay on election-year nominations and nominees with emerging ethical scandals, but it offers no support to Schumer’s 60-vote threshold. In fact, neither party filibustered any nominee to the federal bench who had clear majority support until the Schumer-led filibuster of Miguel Estrada to the DC Circuit in 2003…”

So, why now? Why let the pettiness of partisan politics enter what has been a staid, non ideological process? Why refuse to focus on the fact that Gorsuch is an honorable, capable jurist, and instead engage in a scorched-earth campaign to derail his nomination? Because Republicans didn’t let President Obama appoint a justice in the waning days of his term?

And at what cost? The potential elimination of the filibuster – a powerful institutional check that preserves some modicum of power for the minority. This should not have happen. Republicans should not have to turn to the “nuclear option,” a tool first wielded by Democrats to restrict the right of the GOP minority, in order to confirm Gorsuch. Instead, Sen. Schumer should stand down and let a perfectly qualified nominee be confirmed.