Opposing a Corrupt Transaction

UNITED STATES - FEBRUARY 1: Supreme Court Judge Neil Gorsuch meets with Sen. Joe Manchin, D-W. Va., on Wednesday, Feb. 1, 2017. (Photo By Bill Clark/CQ Roll Call) (CQ Roll Call via AP Images)
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We seem to be on a clear path toward a showdown not only over the confirmation of Neil Gorsuch but over the abolition of the filibuster for Supreme Court nominations. Aside from the pros and cons of Gorsuch’s nomination and the strategic wisdom of the Democrats’ decision to mount a filibuster, it is worth noting something that is being ignored: In practice, Republicans abolished the Supreme Court filibuster in 2005.

This may be seem odd since you not have heard about this. But it’s true.

Back in 2005, when now-Justices Roberts and Alito came up for confirmation in rapid succession, Republicans made it very clear that the they would resort to the ‘nuclear option’ if Democrats tried to block either nomination. In response Democrats worked out a deal which amounted to preserving the Supreme Court filibuster on condition that they never use it. In other words, it was abolished.

There’s an argument that it’s worse to have it de jure abolished than de facto abolished. But it’s not a terribly good argument. It’s also argued that it is the better part of wisdom for the Democrats to put off this fight for the next confirmation battle since that would be the one that would turn the Court decisively to the right. (Gorsuch’s confirmation would just keep the balance where it was before Justice Scalia died.)

This is also a poor argument.

Mainly, this is a poor argument because, as I said, the Supreme Court filibuster has already been abolished. But if we entertain the notion that it still exists, the incentive to abolish it will be wildly greater when Republicans have the opportunity to turn the Court decisively to the right than it is now merely to maintain the status quo ante. In practice it makes no difference: There’s no Supreme Court filibuster. Democrats will never be allowed to use it.

There’s a chance of course that a couple institutionalist Senate Republicans will prevent all this from happening. That would be an interesting development. I doubt it will happen.

If Gorsuch will be confirmed one way or another, why go through the nuclear option motions? I would say it’s important for this reason. I’ve heard a number of pundits arguing that the real issue here, or much of the issue, is that Democrats still haven’t gotten over the treatment of Judge Garland. That argument is both deeply flawed and entirely correct. This really is mainly about Judge Garland.

As Rep. Adam Schiff put it yesterday on Twitter, Mitch McConnell’s historically unprecedented and constitutionally illegitimate decision to block President Obama from nominating anyone a year before he left office was the real nuclear option. The rest is simply fallout. Senate Republicans had the power to do this. But that doesn’t make it legitimate. The seat was stolen. Therefore Gorsuch’s nomination is itself illegitimate since it is the fruit of the poisoned tree.

Democrats likely have no power to finally prevent this corrupt transaction. It is nonetheless important that they not partake in the corruption. Treating this as a normal nomination would do just that. There are now various good arguments to vote against Gorsuch’s nomination on the merits. But to me that’s not even the point. Democrats should filibuster the nomination because it is not a legitimate nomination. Filibustering the nomination is the right course of action. If Republicans react by abolishing the Supreme Court filibuster, so be it. It didn’t really exist anyway. Again, they should filibuster this nomination because it is the right thing to do.

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