Still? Donald Trump nominated Neil Gorsuch to fill Antonin Scalia’s seat on the Supreme Court on January 31st. According to Politico, Senate Democrats have not been able to figure out how they should respond in the six weeks following the pick, and are “paralyzed” by Gorsuch’s stellar record on the appellate bench:
President Donald Trump’s Supreme Court nominee has breezed through more than 70 meetings with senators. Opponents who’ve scoured his record have found little to latch onto. And some Democrats are privately beginning to believe that Gorsuch — barring a blunder at his Senate confirmation hearings next week — will clinch the 60 votes he needs to be approved without a filibuster.
Senate Minority Leader Chuck Schumer of New York has been taking the temperature of the Senate Democratic Caucus but hasn’t begun whipping hard against Gorsuch, sources familiar with the matter said.
Indeed, despite anger from the Democratic base that senators have cowered from a fight against Trump’s high court pick, the sole strategic decision the Democratic Caucus has made about Gorsuch ahead of his confirmation hearings is to make no decision at all.
The problem for Democrats is as obvious as Gorsuch’s qualifications, and it’s that Gorsuch’s qualifications are so obvious. That hasn’t stopped Democrats from hammering Republican nominees to the Supreme Court in the past, such as John Roberts, Samuel Alito, Clarence Thomas, and Robert Bork. Gorsuch’s record gives them no real hook for those kinds of attacks on substance, and his personality makes it difficult to find a way to attack him personally, too. The charm offensive on Capitol Hill has been a rousing success.
So far, the only opening Democrats have is the Chevron doctrine, which Gorsuch has questioned. In Chevron, the Supreme Court held that where the law has ambiguities, deference has to be granted to federal agencies for interpretation. If Chevron got reversed by a later court more interested in forcing textual application of the law and forcing Congress to address ambiguities, it would cut sharply into the authority of these agencies, on which progressives rely for activist governance. (The irony of this, as Steven Hayward pointed out at Power Line, is that the environmentalists lost in the Chevron decision.)
Democrats are expected to hit Gorsuch on Chevron and on the application of stare decisis, as well as the usual issues of abortion and euthanasia, because … that’s all they’ve managed to dig up in six weeks — at least publicly. That esoteric issue won’t keep Americans glued to their TV screens during the confirmation hearings. If that’s all they’ve got, small wonder they’re “paralyzed.” They have no ammo against Gorsuch, and they risk exposing that on national TV if they decide to go all-out against him. That would trigger the use of the nuclear option by Mitch McConnell, and the next nominee will get an even freer pass — and Trump will know he can name anyone for the next opening, as long as Republicans will support him/her.
Progressive activists see this too, and worry that Democrats have already thrown in the towel:
“There’s a fierce urgency at the grass roots that is not being echoed by the Senate Democrats,” said Ben Wikler, the Washington director for MoveOn, which joined 10 other groups in a letter urging Senate Democrats to, essentially, step it up. “The notion that Democrats should wait until after the hearings to speak their mind is a strategy to win a race by running hard in the last 30 seconds.”
Wikler misses the point. Democrats lost this race in November at the presidential and Senate level, the latter thanks to the change in the race rules forced by Harry Reid in November 2013. The only question is whether they run at all in this race, or just offer a default to husband what little political leverage they have for the next opening on the Supreme Court. That’s the real problem, and the source of the paralysis.
If you want some legal analysis of Chevron, Steven Hayward suggests this video from NYU law students. Pay special attention to the third verse:
MORE LIKE, congressional annoyance
But Congress can’t be delegatin’ all the big questions;
They should make policy that’s why we have elections.
So so long as the agency’s resolution doesn’t get too close to the constitution,
Put your hands on your head and crack a yawn;
We just kickin’ back, doin’ the Chevron.