Jencunas: Democrats Choice Between Aggressiveness & Effectiveness in Coming Supreme Court Fight

Thursday, February 02, 2017

Brian Jencunas, MINDSETTER™

No matter what Democrats do, Neil Gorsuch is going to be the next Supreme Court justice. He’s impeccably qualified, but more importantly, he’s impeccably conservative, which is what Republicans want in the modern age of politicized and polarized Supreme Court confirmations. Barring an unforeseen sex scandal or plagiarism revelation, Gorsuch will hold every Republican vote, meaning that the only way Democrats can stop him is to filibuster, requiring 60 votes instead of 50 to move Gorsuch onto the Supreme Court. Since the Trump White House isn’t going to just give up and nominate someone the Democrats want, the filibuster would have to last for four years. In turn, that means Republicans would invoke the so-called “nuclear option” and end filibusters for Supreme Court justices.

Liberals argue the seat Gorsuch is getting was “stolen” from Merrick Garland, attack Republicans for hypocritically vowing to break a filibuster of Gorsuch after they previously promised to block Hillary Clinton’s court nominee’s throughout her entire Presidency, and release a 77-page screed about Gorsuch’s “extremism” (which must have magically developed after he was confirmed to a lower court with bipartisan support in 2006). This makes Democrats feel better but it won’t make any difference to the outcome. The only things Democrats can control is whether the filibuster will exist for future Supreme Court nominees and what signal they send about opposition in the Trump era. Will Democrats mimic the Tea Party’s scorched earth approach to fighting Obama, including using primaries to oust party members who dare collaborate with the enemy? Will the Democratic base start to distrust its leadership like the Republican base learned to hate John Boehner?

Strategically, the best option is to let Gorsuch take his seat and preserve the filibuster for when Ruth Bader Ginsburg dies or retires. This fight will be more important since replacing her with a conservative changes the balance of the court, unlike replacing Scalia with someone who could be his clone. In that fight, at least theoretically, Trump could stumble and nominate a judge that doesn’t unify the Republicans, giving Democrats an opportunity to use the filibuster to force a different judge to be nominated. Such a scenario is unlikely but could easily happen, particularly on the social issues most important to Democrats. A virulently anti-immigration or anti-gay judge could drive away Republicans in moderate states. If the relationship between Trump and Congressional Republicans has worsened when Ginsburg leaves, there could be Republican votes to block a Trump nominee who was too deferential to the executive branch. These are unlikely situations, but they’re all infinitely more possible than keeping Neil Gorsuch off the Supreme Court. Additionally, eliminating the filibuster for Supreme Court nominees makes it easier for the 60-vote threshold to be abandoned entirely, which would cripple the Democrats’ ability to block legislation.

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While trading Gorsuch’s smooth confirmation for keeping the filibuster intact would be more effective, hardline liberals will see it as an outrageous surrender by political quislings. Michael Moore has already said that Democrats who don’t filibuster should face a primary challenge from a “true progressive.” The protestors who packed city streets the last two weekends likely agree with him. The last thing they want is any accommodation, no matter how strategically effective, of a President who they view as both illegitimate and evil.

This is the same combativeness litmus test the Tea Party used against establishment Republicans. It’s a self-destructive cycle where aggressiveness replaces effectiveness as the mark of a good politician. It’s the politics of catharsis, where every fight, no matter how unwinnable, can be justified by opposing the President, who is painted in apocalyptic terms. In this narrative, every Presidential action is the end of America as we know it. This is the mindset that caused the Obama-era Republicans to embrace wild schemes like government shutdowns and debt ceiling showdowns, all of which ended in defeat for the GOP.

At this point in my column, progressives are probably screaming at their screens that Tea Party worked. Republicans now have majorities in both houses of Congress and won the Presidency. That ignores the statewide races Republicans lost in Delaware, Missouri, Nevada, Colorado, and New York after Tea Party candidates beat more electable politicians. Where the Tea Party was successful was where they beat Republicans in states like Utah and Texas that are nigh-impossible for Democrats to win in. Democrats don’t have the luxury of those safe seats.

In 2018, ten Democratic Senators will be running for reelection in states Trump won, five in states he won by more than ten percent. In contrast, no Republicans are running for reelection in a state Trump lost. Only one, Nevada’s Jeff Flake, is running somewhere Trump won by fewer than five percent. Even in the best of circumstances, this is a brutal map for Democrats. The more progressives push the party to the left, the closer Republicans will get to the coveted, incredibly rare, filibuster-proof majority of 60 or more Senators. None of those races will be decided by the Supreme Court fight, but it will be an early indicator of how self-destructive Democrats will be to their own party.

Jencunas: Democrats Choice Between Aggressiveness & Effectiveness in Coming Supreme Court Fight

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