The Gorsuch Confirmation Just Got Much More Interesting

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Let me start by saying that I fully expect that if Democrats filibuster President Trump’s nomination of Judge Gorsuch to fill the vacant seat on the Supreme Court, Republicans will abolish the filibuster for Supreme Court nominees and confirm him on a party line vote. I do not see this as a surprise or even necessarily a bad thing inasmuch as the filibuster was effectively abolished in 2005. Back then Democrats entered into an agreement with Republicans not to filibuster now-Chief Justice John Roberts in exchange for not abolishing the filibuster for Supreme Court appointments. In other words, the Supreme Court filibuster has only existed as a mirage for more than a decade. So absent some disqualifying revelation I fully expect Gorsuch to be confirmed.

But something happened today that will make his confirmation process considerably interesting than I’d anticipated.

As you probably saw, Gorsuch today said that Trump’s attacks on a federal judge and the federal judiciary were “demoralizing and “disheartening.” But he didn’t exactly say that. Sen. Richard Blumenthal (D-CT) said Gorsuch said that when he met with him in his Senate office. We don’t have to worry about their being any dispute over what was said because Ron Bonjean, a longtime DC Republican communications guy who is representing Gorsuch for the confirmation process, confirmed that Gorsuch had said this in his conversation with Blumenthal.

But saying this in private and then having a spokesperson confirm is quite different from saying it himself public. The fact that one happened and the other didn’t was no accident – something that is clear from the description of these events in Roll Call

“He certainly expressed to me that he is disheartened by the demoralizing and abhorrent comments made by President Trump about the judiciary, but I will be asking for more specific and forthcoming responses to those kinds of questions before I determine how I will vote,” Blumenthal said.

Blumenthal said in a statement that he asked Gorsuch to make his statement about Trump’s comments publicly, but Gorsuch declined.

“If he wants the American people to believe that he is truly independent, Judge Gorsuch must tell them in no uncertain terms that President Trump’s attacks are not just disappointing – they are abhorrent and destructive to our Constitutional system – and he must condemn them publicly,” Blumenthal said.

I fully expect that we will now see Democrats make almost the entirety of Gorsuch’s confirmation process into a review and critique of President Trump’s behavior in office, treatment of the judiciary, respect for the rule of law, reliance on executive orders and more – with a particular emphasis on the difference between what Gorsuch is willing to say in private and what he is willing to say in public, especially under oath.

No judge with integrity can look kindly on what we’ve seen from President Trump. So I take his remarks at face value. This afternoon many observers said that this was also good politics for Gorsuch and his nomination. While I agree with that judgment as far as it goes, the logic assumes a President who is in control of his emotions and faculties. Neither of which are the case.

Remember, we know President Trump very well by now. He has just gifted Gorsuch the opportunity which is the ultimate prize in any elite judicial career. The idea that Gorsuch would now pass a negative judgment on Trump and his behavior as President can only strike him as a betrayal. Almost any other President would be able to prioritize his interests over his ego and give Gorsuch the room he needs. Trump will almost certainly not be able to.

I even think it is possible that before this is over Trump will be asking his aides whether it is possible for him to withdraw Gorsuch’s nomination even if he still seems certain to be confirmed. Likely? No. Possible? Absolutely. It would be a wildly self-destructive act. But we know Trump. Ego and affirmation are everything. Betrayal and humiliation can never be allowed to stand.

Do not get me wrong. I do not expect any of this will lead to Gorsuch being rejected by the Senate. But I do expect that Democrats will be able to squeeze him tightly in a vise, one jaw of which is his judicial integrity and respect for the rule of law and the other which is his sponsor’s temper and fragile ego. Think of it as similar the clamp Sean Spicer is in between his public credibility and his boss’s approval, only less pitiful and with higher drama. It is not only Trump’s recent attacks on Judge Robart and attacks on the judiciary in general in recent days. There were also his caustic attacks on Judge Curiel in 2016 as unfit to judge his case because he was born to parents who were immigrants from Mexico.

There is that and so much more to discuss.

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