opinion

MYSTIFYING

Democrats Are Right to Oppose Gorsuch, but They’re Doing It All Wrong

By making the fight about the Supreme Court nominee’s alleged bias rather than the Republican dirty tricks of 2016, Democrats risk harming the nomination process—and losing the vote.

opinion

Photo Illustration by Elizabeth Brockway/The Daily Beast

Senate Democrats are right to oppose the nomination of Judge Neil Gorsuch to the Supreme Court, but they’re doing it all wrong, and endangering our democracy in the process.

Someone has decided that the Democrats’ best argument against Judge Gorsuch is that he favors fat cats over little guys, be they truck drivers fired for refusing to freeze to death, or disabled folks fighting their insurance companies for benefits. And indeed, most Democrats have stayed on-message, replaying this mantra all the way to their promises to filibuster the nomination. “His career clearly show he harbors a right wing, pro-corporate, special interest agenda,” Minority Leader Charles Schumer said last week.

What a terrible idea. Sure, here is some truth to these claims, but there are three reasons that “Biased for the Big Guy” is exactly the wrong argument to make: It’s not compelling, it’s the wrong reason to filibuster, and ignores the right reason to filibuster, which is that there shouldn’t be a vacancy for Gorsuch to fill in the first place.

First, it’s not compelling. Gorsuch had apparently gotten the same memo that Democrats did; he showed up at his hearing with a laundry list of cases where he’d ruled for the little guy over the big guy. He convincingly demonstrated that critics had cherry-picked opinions that supported their claim, and ignored those that undermined it. And he peppered his hearing with aw-shucks remarks that charmed Republicans and stymied Democrats.

But even if Gorsuch hadn’t successfully parried the “biased for the big guy” argument, is the argument really so strong? OK, a Republican-nominated judge tends to rule for corporations over individuals. Is that really the worst you could come up with?

No wonder several Democrats are publicly considering whether or not to support the filibuster. “Biased for the big guy” hardly justifies filibustering an obviously qualified, intelligent, and ethical candidate.

Second, filibustering on the basis of ideology is bad for democracy. It’s arguably what got us into this whole mess to begin with: the 1987 nomination of Judge Robert Bork, whose ideas really were far outside the mainstream, and the Democrats’ decision to oppose him on that basis. Bork was, indeed, a special case. He should not have been nominated in the first place. But now that “Borking” is a verb, surely it should be reserved only for extreme cases like his, whether on the left or the right.

So far, that has indeed been the case. Since Bork, no Supreme Court nominee has been opposed solely on the basis of ideology. Not Alito, not Sotomayor, not even Justice Thomas, who was opposed largely on the basis of the sexual harassment claims against him.

In other words, the system, Borking and all, is working. Neither Democratic nor Republican presidents have put up a nominee as extreme as Judge Bork was, and so none of them have been Borked.

Is Neil Gorsuch really that extremist? He presented himself at hearings as a pragmatist, more in the mold of Justice Kennedy than of the late Justice Scalia he is replacing. But even if that was just posturing, Gorsuch’s record and published writing make clear that while he is indeed a hard-right conservative, he’s not out of the broad mainstream of American jurisprudence. He’s no Bork.

For Democrats to Bork Gorsuch, then, poisons the well. It is dangerous for what’s left of the judicial nomination process. What’s to stop Senate Republicans from Borking whoever the next Democratic president nominates? Surely that person will have some liberal views, just as Gorsuch has some conservative ones. What then?

God help me, but I think Lindsey Graham made this point best. As he said back in 2010, regarding the nomination of Elena Kagan, “The Constitution, in my view, puts an obligation on me not to replace my judgment for [President Obama’s], not to think of the hundred reasons I would pick someone different. I view my duty as to protect the Judiciary and to ensure that hard-fought elections have meaning in our system.”

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And so, last week, what went around came around. Senator Graham reminded Democrats that he had voted for Justices Kagan and Sotomayor, rather than apply a substantive litmus test. “The reason I didn’t do that,” Graham said, “is because I thought they were qualified. I thought that is what we should be doing, and I’m beginning to wonder how the game is played.”

That is exactly right. Judge Sotomayor was disagreeable to Graham but qualified, and Judge Gorsuch is disagreeable to Democrats but qualified. The Senate is meant to confirm qualified candidates, full stop. Senators should only oppose candidates—let alone filibuster them—if they are unqualified. Yes, that includes someone so extreme that the extremity of their views itself makes them unqualified. But again, Gorsuch is not that judge.

What’s so peculiar about the “biased for the big guy” argument is that in addition to being ineffective and destructive to democracy, it is also unnecessary, insincere, and counterproductive.

We all know that the real reason Democrats are opposing Judge Gorsuch has nothing to do with Judge Gorsuch. It’s about Judge Garland. Republicans broke the rules in 2016 by refusing even to consider Judge Merrick Garland, President Obama’s nominee to the Supreme Court, and Democrats are not going to let them get away with it. If Democrats don’t oppose Judge Gorsuch, they’re letting the cheaters win, and that is bad for everyone.

So why not say so?

That argument, unlike the flimsy bias claim, has the benefit of being true. It also is effective: It doesn’t matter how nice and smart of a guy Judge Gorsuch is, he shouldn’t be there in the first place—there shouldn’t be a vacancy to fill.

And, helpfully, this true and effective argument doesn’t further damage the democratic process. On the contrary, it is aimed at repairing it.

I am frankly mystified as to why the Democratic leadership has chosen a disingenuous, destructive, and ineffective argument over an authentic, beneficial, and effective one. But if Gorsuch actually gets 60 votes to end a filibuster, my mystification will turn to horror. Because while Gorsuch’s conservatism is not, in itself, reason to oppose him, the fraudulent switcheroo of a Garland-moderate for a Scalia-conservative—accomplished by flouting precedent and violating senators’ oaths to defend the constitution—is.

There are other ways forward, as I’ll discuss in my next column. But absent a resolution of the crisis of 2016, Democrats have no choice but to filibuster the Gorsuch nomination. Not because of Gorsuch, but because of the nomination process itself. If cheaters are allowed to get away with breaking the rules, the rules aren’t real.

That is what this fight is about: not some flimsy allegations of bias, but the rule of law itself. Why Democrats are making a phony, destructive, and unpersuasive argument is mystifying. I just hope they don’t get what they deserve.