Pick Your Battles

President Trump has nominated Neil Gorsuch to the Supreme Court. He is conservative — in fact, more conservative, by some accounts, than the justice he is replacing, the late Antonin Scalia. Senate Democrats should allow the nomination to get to the floor of the Senate as soon as possible. On the floor, they can vote how they will. But to attempt to block it would be a fool’s errand. Furthermore, there is a huge opportunity in this confirmation event to demonstrate that they really are the party with solid values and commitment to the rule of law, and to the U.S. Constitution. Here’s why.

(Incidentally, I’ve avoided reading any opinion pieces on this question, which were published everywhere today. This is just my view on this).

  1. I’m channelling Machiavelli: Democrats can’t win here. It’s that simple. Gorsuch is a highly accomplished jurist, with solid legal and political credentials — educational and on the bench. No matter what you think of his judicial philosophy, he’s not a crackpot jurist. He’s a conservative jurist. I’ve seen no evidence of judicial misconduct, malfeasance, or conflicts of interest. Democrats don’t agree with his rulings — but that’s not a good enough reason to attempt to block the nomination.
  2. If the Democrats attempt to win something they cannot (by being obstructionist), in doing so they will prompt majority leader Mitch McConnell to invoke the “nuclear option” — changing the last vestige of the idea of a supermajority needed for the confirmation of judges to the Federal bench. Trump is begging McConnell to do this. Don’t give him the pleasure of expanding the reach of this particular executive’s authority over the Congress. It’s one thing that both Houses and the White House are in Republican hands. Let’s not collapse two branches into one.
  3. If they obstruct, without any hope of derailing the nomination, the Democrats will destroy the moral high ground they established and emphasized with respect to the nomination of Merrick Garland. Adherents of the rule of law, no matter to which party they belonged, were deeply incensed by how McConnell et al. shafted the Constitution with that move. They gambled, and they won. But all they won was a political battle. Democrats should not magnify that injustice with another. During the presidential campaign, Hillary Clinton and Michelle Obama urged us to “take the high road” when the Republicans take the low road, because it demonstrates that we have a sense of integrity, and don’t simply drop our principles for political expediency. Don’t give that up.
  4. Because there will be a time when it matters. In 1939, after Nazi Germany had annexed parts of Czechoslovakia, Franklin Roosevelt sent a telegram to Adolf Hitler asking him to guarantee the territorial integrity of more than a dozen other countries in Eastern and Central Europe. Hitler read it aloud to the German Reichstag, to uproarious laughter. Roosevelt knew that his telegram would not stop Hitler. But he also knew that it would set a moral high ground, since Hitler had stated that he would seek no more territorial revisions in Europe. When Roosevelt asked for a guarantee, Hitler laughed. And then he lost. The legal principle of territorial integrity is now deeply embedded in international law.
  5. Senate Democrats (and those of us who disagree with (abhor?) this administration and its goals can and should use this opportunity to make an important, but long-lasting point: that while we may find Gorsuch’s prior rulings to be problematic (because we disagree with them), we are not willing to allow that disagreement to turn the judiciary into another political branch of government. The independence of the judiciary must be upheld as a coequal branch of government, period. The rule of law is more important than “getting our way” ideologically.
  6. If you don’t buy any of what I’ve already said, go back to point #1 above. That should be enough.



~ by de cive on February 1, 2017.

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