Senate Democrats should use any and all means, including the filibuster, to block confirmation of President Trump’s Supreme Court nominee. They will almost surely fail. But sometimes you have to lose a battle to win a war.
This is purely about politics. Republicans hold the presidency, majorities in the House and Senate, 33 governorships and total control of the legislatures in 32 states. If the Democratic Party is going to become relevant again outside of its coastal redoubts, it has to start winning some elections – and turning the other cheek on this court fight is not the way to begin.
Trump’s pick, Judge Neil Gorsuch, has the résumé required of a Supreme Court justice. But so did Judge Merrick Garland, former President Barack Obama’s last nominee, to whom Senate Republicans would not even extend the courtesy of a hearing, let alone a vote. Majority Leader Mitch McConnell, R-Ky., left the late Antonin Scalia’s seat open for nearly a year to keep Obama from filling it. That, too, was purely about politics.
I’m not counseling eye-for-an-eye revenge. I’m advising Democrats to consider what course of action is most likely to improve their chances of making gains in 2018, at both the state and national levels.
The party’s progressive base is angry and mobilized. Many Democrats are convinced that FBI Director James Comey and Russian President Vladimir Putin decided the election. The very idea of a Trump presidency sparked vast, unprecedented demonstrations in Washington and other cities the day after the inauguration.
In the two weeks since, Trump has only piled outrage upon outrage, as far as progressives are concerned. He took the first steps toward building his ridiculous wall along the southern border, but with U.S. taxpayers’ dollars, not Mexico’s. He squelched government experts who work on climate change. He weakened the Affordable Care Act in the hope that it would begin to collapse, which would make it easier for Congress to kill it. He displayed comic ignorance of our history (somebody please tell him that Frederick Douglass has been dead since 1895). He signed executive orders banning entry to citizens of seven Muslim-majority countries and refugees from around the world, an action so appalling that huge crowds gathered at major airports in protest.
And Trump is just getting started. Democrats cannot even limit the damage, let alone reverse it, without more power than they have now.
That is the political context into which the Gorsuch nomination arrives. From my reading of the progressive crowds that have recently taken to the streets, the Democratic base is in no mood to hear about the clubby traditions and courtesies of the Senate. The base is itching for a fight.
The way McConnell et al. treated the Garland nomination was indeed unforgivable. Senators who fail to remember that will get an earful from their constituents – and, potentially, a challenge in the next primary. More importantly, those senators will be passing up a rare political opportunity.
With just 48 votes, all Senate Democrats can do is filibuster, denying McConnell the 60 votes he needs for a final vote on the nomination. In response, McConnell could employ the “nuclear option” – changing the Senate rules to eliminate the filibuster for Supreme Court confirmations. In the end, Gorsuch would be approved anyway.
But I believe Democrats should wage, and lose, this fight. The 60-vote standard looks more and more like an anachronistic holdover from the time when senators prided themselves on putting the nation ahead of ideology. These days, so many votes hew strictly to party lines that it is difficult to get anything done. The Senate is supposed to be deliberative, not paralyzed.
And I can’t help thinking back to 2009. Republicans made an all-out effort to stop the Affordable Care Act. Their motives were purely political; some GOP senators railed against policies they had favored in the past. Ultimately, they failed. Obamacare became law.
But this losing battle gave tremendous energy and passion to the tea party movement – which propelled Republicans to a sweeping victory in the 2010 midterm election. It is hard not to see an analogous situation on the Democratic side right now.
Democrats cannot stop Gorsuch from being confirmed. But they can hearten and animate the party’s base by fighting this nomination tooth and nail, even if it means giving up some of the backslapping comity of the Senate cloakroom. They can inspire grass-roots activists to fight just as hard to win back state legislatures and governorships. They can help make 2018 a Democratic year.
Eugene Robinson can be contacted at firstname.lastname@example.org.