There’s been a lot of hue and cry about Donald Trump’s nomination of Neil Gorsuch to the Supreme Court. Most of it is (rightfully) centered around the fact that Merrick Garland, President Obama’s nominee, sat in limbo for an entire year because Republicans (like this asshole) refused to even hold confirmation hearings. And the worst part about it was that Republicans appeared entirely content to keep that stalemate going indefinitely.
Now, if Hillary Clinton had won the election, it’s likely that Senate Republicans would have rushed Garland through the confirmation process; Obama, not realizing the GOP’s endless capacity for spite, specifically selected Garland because of all the potential candidates on his shortlist, Garland was the most moderate (and therefore the most likely to get through the confirmation process without any issues). Knowing this, Republicans would have realized Garland was the best they were going to get, and they would have eventually taken the concession offered by Obama.
But, as we all know, Clinton didn’t win. So now we’re looking at Neil Gorsuch, and Democrats are pissed that the GOP is being rewarded for its bullshit tactics. And they should be! Antonin Scalia died over a year ago, and the less-than-full-strength Supreme Court has been in a holding pattern waiting for this partisan fight to resolve itself. Which means there’s a backlog of cases that need rulings building up, including the case of Gavin Grimm, a 17 year-old trans boy from Virginia who isn’t allowed to use the bathroom that fits his gender identity. And the GOP willfully and recklessly ground our justice system to a halt solely for political purposes (like they once did with our government). Make no mistake: it is absolute horseshit, and it boggles the mind that Republicans continue to get away with obstructionist tactics like this and still keep their seats. And Democrats know it, which is why Senate Minority Leader Chuck Schumer now supports filibustering Gorsuch’s confirmation to the Supreme Court.
And yes, it’s galling that Republicans resorted to such immature, petty and irresponsible tactics to avoid confirming Garland, and it’s completely unfair that they’re being rewarded for them. I recognize that the political landscape is more partisan than it’s ever been, and I recognize that the bar has been lowered for what we would consider tolerable behavior from our elected officials. I also recognize that part of what’s driving this filibuster talk is liberals who are critical of Democrats trying to take the high road when their counterparts across the aisle have shown zero inclination to do the same.
That said…this isn’t a worthwhile hill to die on.
After months of (correctly) calling out the GOP for their shit, by filibustering Gorsuch’s confirmation, Democrats would be setting themselves up for all sorts of charges of hypocrisy from the right. Don’t get me wrong: I think it’s high time Democrats started playing by Republicans’ rules. As the GOP has shown, you can pull all sorts of heinous shit as long as you do enough of it that no one instance in particular stands out. The American public eventually gets buried in an avalanche of bad news, making it much more difficult to determine when the best time is to stand up and say “Enough.” But Democrats need to pick a better time to start playing dirty.
Assuming Gorsuch is confirmed, he will, as I mentioned, replace the late Antonin Scalia. Scalia was a strict literalist who formed his opinions based on the letter – and not the intent – of the law, and his general position was (and I’m paraphrasing here), “If you don’t like the way the law is applied, then change the law.” Need an example of how literalist Scalia was as a jurist? Check out this bad boy. If you don’t feel like reading that, I’ll give you a quick rundown. Scalia was pro-waterboarding of enemy combatants; in an interview with the BBC, he was told that waterboarding constitutes cruel and unusual punishment, which is banned by the U.S. Constitution. Scalia’s response was, essentially, that it’s only cruel and unusual punishment if the person getting waterboarded has been tried and convicted, and that detainees don’t get the same rights under the Constitution: according to the letter of the law, detainees are technically not prisoners.
Scalia’s presence on the Supreme Court meant there was a balance: four liberal judges (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), four conservative judges (Scalia, Samuel Alito, Clarence Thomas, and Anthony Kennedy), and one judge who leans conservative but has sided with liberal justices in the past (Chief Justice John Roberts). With Scalia’s death, there was an opportunity for Garland (or whoever else Obama might have appointed) to tip the balance of the court more towards liberals. That’s obviously not going to happen, but on the bright side, Gorsuch’s confirmation doesn’t change anything from where we were before Scalia died. The same balance will still exist.
Like I said, I’m all for Democrats stooping to Republicans’ level if that’s what it’s going to take to stop some of the more harmful impulses and proposals of the Trump administration. And if Ginsburg or Breyer kick the bucket while Trump is still in office, then I’ll wholeheartedly support Democrats filibustering the shit out of whoever Trump nominates next. But in this case, it might be best for Democrats to swallow their pride, confirm Gorsuch, and live to fight another day.