To be or not to be … obstructionist? That is the question for red-state Democrats that they must answer this week on the confirmation of Neil Gorsuch to the Supreme Court. Is it nobler to suffer the slings and arrows of outrageous outrage on the Left and hope to find a path for re-election next year? Or should they take arms against a sea of Republicans, and by opposing end their political careers and any protection against the next Supreme Court nominee?
It’s come down to two choices, and neither of them look good, the New York Times’ Carl Hulse notes as the confirmation hearings begin today:
Multiple Senate Republicans, starting with Mitch McConnell of Kentucky, the majority leader, have made it very clear they intend to see Judge Gorsuch on the Supreme Court and will do what they must to make that a reality. That is a not-so-subtle way of saying they will change Senate procedure to overcome a filibuster. They believe such a move is eminently justifiable, given that Senate Democrats did so in 2013 to eliminate the 60-vote filibuster against nominees except those for the Supreme Court.
Some Democrats believe that Republicans are posturing in an effort to intimidate the opposition and don’t yet have the votes to end the filibuster. They also worry their party could face a severe political reprisal from its energized liberal backers if they do not do whatever they can to oppose Judge Gorsuch no matter the consequences.
Other Democrats privately take a different view. They say the party shouldn’t test the limits on the Gorsuch nomination since his approval won’t change the ideological makeup of the court from when Justice Scalia served. They believe Democrats should hold their fire in the expectation of another vacancy. Then, if Mr. Trump goes with a staunch conservative, dig in against that person and argue that Republicans are instituting a partisan rules change to drastically reshape the court.
The problem with that argument is one Hulse never mentions in his analysis: Harry Reid. The rule change was only made possible by Reid’s own change in November 2013, which he made in a blatantly partisan effort to stack the DC Circuit appellate court with progressive judges. Two years ago, Jeffrey Toobin pointed out that this was almost all Reid’s idea, as Barack Obama “didn’t even submit nominees to fill many judicial vacancies, including on the DC Circuit[.]” Reid, Toobin wrote, had left “an imposing legacy — the transformation of the federal judiciary. …For the first time in decades, that court now has a majority of Democratic appointees.”
Democrats can argue all they want about “partisan rules changes,” but Reid set that precedent for explicitly partisan outcomes. For those who want to argue that Reid left the Supreme Court alone, there are two responses. The obvious response is that Reid didn’t have a Supreme Court opening at the time that required it, but no one doubted that he would have made that change had Republicans not had the majority when Merrick Garland was nominated.
The second response comes from Toobin two years ago: “In future decades, many of these judges will be candidates for promotion if a Democratic President has a Supreme Court vacancy to fill.” Reid knew what he did would impact the Supreme Court, and expected Hillary Clinton to be the beneficiary. Instead, he handed Republicans a massive advantage for single-party governance. Most of the Democrats in the Senate today were complicit in that strategy, and they have no room to whine about it now. Griping about “partisan rules changes” is a losing argument, a whine at the end of an arc that began a generation ago with Democratic partisan obstructionism.
For Democrats in solidly blue states, knee-jerk opposition is the path of least resistance. As The Hill’s Jordain Carney reports, though, it’s the ten Democrats in states Donald Trump won who find themselves in the role of Hamlet, without an Ophelia to give them cover. In fact, the slings and arrows are coming more from the Right, at least where it counts:
Democrats and aligned outside groups are being badly outspent on TV advertising ahead of the hearings. GOP and conservative groups have spent more than $3.3 million, according to CNN, compared to $180,000 from Democrats.
And conservative groups have launched rounds of TV and web ads targeting vulnerable Democrats in their home states.
The Judicial Crisis Network has pledged a total of $10 million to support Gorsuch’s nomination and target Democratic senators. It’s already spent $4.4 million on ads for Gorsuch, including a $2 million ad buy targeting vulnerable Democratic Sens. Claire McCaskill (Mo.), Joe Donnelly (Ind.), Heidi Heitkamp (N.D.), and Jon Tester (Mont.).
The National Republican Senatorial Committee (NRSC) is using the issue as ammunition against red-state Democrats they hope to unseat, including funding radio ads and billboards against McCaskill, Donnelly and Casey, and Sen. Debbie Stabenow (D-Mich.).
This might be overkill, but clearly the Right is taking no chances. It’s an opportunity to start opening the political conversation for next year’s midterms, and the battleground around Gorsuch makes for a great position. Progressive groups claim that Gorsuch is vulnerable to be painted negatively in light of economic populism, but that’s a tough sell for a judicial nomination — and that argument lost twice for the Left last year. Bernie Sanders got beaten for the Democratic nomination, and the economic-populism pendulum swung Right to elect Donald Trump — and keep Republicans in charge in the Senate.
Progressives are demanding that red-state Democrats double down on that failure. In the end, expect them to pass on that opportunity and attempt to defuse the Gorsuch confirmation as the consequences of the election.