"One can't believe impossible things."
"I daresay you haven't had much practice," said the Queen. "When I was your age, I always did it for half-an-hour a day. Why, sometimes I've believed as many as six impossible things before breakfast."
--Lewis Carroll,
Through the Looking Glass
Why, of course the Democrats are going to filibuster the nomination of Neil Gorsuch. This is Washington politics, after all, and there's a scalp on the other wall with the name tag: Merrick Garland. The leadership in the Democratic Party wants payback, and a scalp of their own.
Not that there's a whole lot to complain about when it comes to Neil Gorsuch, or his legal and judicial career. His elevation to the Supreme Court of the United States would improve the reputation of that court. Back in 2006, his nomination to the 10th U.S. Circuit Court of Appeals was unanimous. Yes, the same United States senators--think Charles Schumer of New York, Thomas R. Carper of Delaware--who gave him a thumbs-up a decade ago now threaten to filibuster. Even though Neil Gorsuch's time on the bench has only improved his résumé.
The leadership among the Democrats might be upset because they couldn't get him to talk about cases that he might be required to rule on later. It's a time-honored tradition among judges, whether nominated for the bench or running for election. The only thing the Democrats know for sure is that Neil Gorsuch has long modeled his consitutionalist views after the man he wishes to replace: Antonin Scalia. In fact, when he was called with the news of Mr. Justice Scalia's death, he says he lost his breath. He was on a ski trip and was so blinded by tears that he couldn't see down the mountain. That's enough for the leadership of the Democrats.
Like the former conservative stalwart on the nation's highest court, Neil Gorsuch is said to focus primarily on the text of the U.S. Constitution, and not invent things on his own. He has told the press that if judges factor in personal beliefs, societal changes or social welfare into their rulings, then judges risk becoming "little more than politicians with robes." That, too, was enough for the leadership of the Democrats.
Sen. Dianne Feinstein asked Neil Gorsuch if he could be fair to the little guy. The very premise of the question shows the senator's ignorance of how the law works. If a homeless man robs a big store, such as Wal-Mart, would Neil Gorsuch or any other judge throw out his conviction? After all, he's homeless and Wal-Mart is the very definition of Big Business.
Or would Neil Gorsuch follow the law instead? He said he'd rule according to the law, and has ruled for the little guy and the big guy, depending on circumstances.
Gorsuch said he had ruled 2,700 times in his career, and in some cases it had been for corporations, but in numerous cases he had ruled for individuals or "the little guy." When Sen. Feinstein asked if he would send her examples, he said actually he would give her examples right then and there, naming citations to about eight cases, and said there were many more. When the New York Times called him on it, and called Cynthia Orr--the pregnant police officer in Albuquerque who sued when she had been denied compensatory time off--she told the Times that indeed, when her case was appealed to the 10th Circuit, it was Neil Gorsuch who sided with her over the police department.
So the leadership among the minority party will filibuster this talented jurist who graduated from Columbia and was in Phi Beta Kappa, graduated cum laude from Harvard Law School, and earned a Ph.D from Oxford University in legal philosophy. Trying to say he is unqualified will only make the Democrats look silly or vindictive.
So unable to question his credentials, we expect to hear things like this over the next few weeks:
Neil Gorsuch would roll back civil rights protections. He would overturn Roe v. Wade. His confirmation would harm working families. He followed a "disingenuous strategy" at confirmation hearings.
All those things were said about John Roberts during his nomination.
Neil Gorsuch would take America backward when it comes to anti-discrimination laws. He'd keep women down. He is too far right-wing for the bench.
All those things were said about Samuel Alito.
The bottom line is, just as Mitch McConnell noted not long ago, the Democrats will say these things no matter who a Republican president nominates. It's their default position.
But the numbers just aren't there for the Democrats. As the president, the vice-president, the Senate majority leader and most in the commentariat have noted, Neil Gorsuch is very likely going to be confirmed. One way or the other.
The other way? That'd be "going nuclear," to borrow an awful phrase in Washington these days. A few years ago, the majority leader in the Senate at the time, Harry Reid, decided he'd had enough of the filibuster and decided to all but kill it. That is, he could ram legislation and nominees through the process, trample all over the loyal opposition, and push through President Obama's picks on a simple majority vote. And he did. He didn't include Supreme Court picks, but surely he knew that one day the Republicans would be in control again, and they'd take the next step if necessary. And it appears as though they will, if they can't get to 60 votes in the next month or so.
Harry Reid's legacy is sad indeed, especially when you consider that Supreme Court nominees as different as Antonin Scalia and Ruth Bader Ginsburg got 90 votes for confirmation in their time. That is when the Senate voted on qualifications, not politics. When they go back to voting on qualifications, they will again earn back the respect of the American public.
Editorial on 03/25/2017