Readers will find no surprise, but also no sense of regret either from Chuck Schumer’s defense of minority prerogative in Politico today when it comes to Supreme Court nominations. Skipping entirely over the machinations he and Harry Reid employed to keep Senate Republicans in the minority from having a say in appellate court nominations, Schumer argues that his Democrats are the only bulwark standing between Donald Trump and an independent judiciary. For that altruistic reason, Neil Gorsuch will need to get at least 60 Senators to agree to proceed to a confirmation:
Nominees to our nation’s highest court must demonstrate that they are mainstream and independent enough to earn the support of at least 60 senators from both parties. Both of President Obama’s nominees to the Supreme Court exceeded that level of support. The simple question we are asking is: Can President Trump’s nominee meet that same test? If the nominee fails to meet 60 votes, the answer isn’t to change the rules; it’s to change the nominee.
This is not unfair or obstructionist—this is the Senate doing its job by critically evaluating a nominee who will have immense impact on the lives of Americans. The most important factor in assessing a Supreme Court nominee in the time of the Trump administration is whether or not the potential justice will be an independent check on an executive who may act outside our nation’s laws and the Constitution. It remains to be seen if Judge Gorsuch is able to fulfill that important constitutional role.
What’s rather remarkable about this piece — it’s short and easy to read in full — is that it barely mentions Gorsuch himself, and makes no case that his confirmation is problematic. That makes some sense, given that Senate Democrats confirmed him to the appellate court by acclamation over a decade ago. That includes every current member of Senate Democratic leadership, including Schumer himself.
Furthermore, Schumer’s essay contains exactly zero acknowledgement of the fact that his party put the 60-vote threshold on the chopping block with its own exercise of the nuclear option in late 2013. Schumer complains that Trump wants “to rewrite the Senate rules” for Republicans and “demanded” that Mitch McConnell “deploy the so-called nuclear option,” without even a note to point out that he and Harry Reid created the precedent to do so. In fact, the whole piece reads as if it’s Trump that’s getting confirmed, without a mention at all that his own party’s bare-knuckled tactics and especially Harry Reid’s character assassinations from the well of the Senate had nothing to do with Trump’s political emergence or their own exile into the political wilderness.
It’s an amazing example of projection. For those who have children, the entire article can be summed up thusly: “Mom, he hit me back!”
Meanwhile, a Yale law professor who identifies with the Stephen Breyer/Elana Kagan wing of the Supreme Court offers advice to Schumer et al in today’s Wall Street Journal. If Gorsuch really does need 60 votes, you’d better find a way to make sure he gets them:
Moderates could do a lot worse than Judge Neil Gorsuch—and we probably will if he isn’t confirmed. Donald Trump is clearly determined to nominate a judicial conservative to the Supreme Court. Elections have consequences, as Barack Obama once chided congressional Republicans. …
But among judicial conservatives, Judge Gorsuch is as good as it possibly gets. I have known him personally for more than a decade, since he was an attorney in the Justice Department. He is a brilliant mind, but more important he is a kind, sensitive and caring human being. Judge Gorsuch tries very hard to get the law right. He is not an ideologue, not the kind to always rule in favor of businesses or against the government. Instead, he follows the law as best as he can wherever it might lead. …
The sensible route for moderate Democrats is clear: They should cross the aisle and join Republicans to cut off a filibuster, allowing an up-or-down vote by a simple majority on Judge Gorsuch. That will prevent Republicans from invoking the “nuclear option” to change the Senate rules and abolish the filibuster for Supreme Court nominees. One way or another, Judge Gorsuch is going to be confirmed. The question is how much damage will be done to the country first.
Actually, the question is how much damage has already been done to the country by Senate Democrats, and whether they will ever own up to it. If McConnell changes the rules to allow for a simple majority to proceed to confirmation, he will only be following the precedent that Schumer, Reid, and every single Democrat in the Senate set first.