Megan McArdle
Liberals are angry about Neil Gorsuch, and I don’t blame them.
Thanks to the unexpected death of Antonin Scalia, they were so close to flipping the balance of the Supreme Court that they could taste it. Vast possibilities seemed to be opening up to move us towards a government that was more friendly to regulation, less friendly to social conservatism, and overall much more congenial to liberal visions of the role of government. Then Republicans announced that they simply weren’t going to hold a vote on Merrick Garland, the center-left judge that Obama nominated to replace him. They were well within their legal rights, and there was some precedent. But nonetheless, this obviously went farther than previous blocks — most notably, because Democrats lost the election. If I were a liberal, I would be filled with the kind of blind, existential rage that … well, that filled conservatives when Democrats passed Obamacare on a straight-line party vote using a parliamentary maneuver.
I thought Republicans should have confirmed Garland, and I’ve written before that the arms race to procedurally hack the U.S. government — via controlling the Supreme Court, or dreaming up ever-more-arcane uses of the parliamentary rules — is bad for the country and needs to stop. That doesn’t mean I think it’s going to. The escalating tit-for-tat game over the Supreme Court has been going on at least since the 1980s, and arguably long before that, in the post-New-Deal era when courts began tilting noticeably leftwards. Under Reagan, conservatives sought to reverse that by grooming conservative justices for all levels of the courts. Democrats tried to keep them from doing so, culminating in the disgraceful treatment of Robert Bork. Ever since, we’ve been locked in a spiraling cycle of payback.
Everyone understands that this is destructive; everyone wishes it to stop. The catch is, they also believe that it needs to stop after they themselves get last licks in. And so it continues.
Thus I was unsurprised when Democrats began talking about a filibuster before they even knew who the nominee was. In the New York Times Tuesday night, David Leonhardt argued in favor of the scorched earth approach to Gorsuch’s confirmation — and the article was posted so quickly after the announcement that it was almost certainly written beforehand, with the name filled in at the last minute.
David Leonhardt is not a fire-breathing radical; he’s a sober, sensible guy who I greatly admire. That he’s arguing in favor of a blanket filibuster of President Donald Trump’s nominees is a sign of something. And it’s nothing good.
As I say, I’m not surprised, nor am I exactly outraged. But I do have to ask: what’s the endgame? Is the idea that we just won’t nominate anyone to the Supreme Court any more, unless one party happens to hold both the White House and a 60-vote majority in the Senate? It’s one thing to reject nominees individually, on ideological or other grounds. But “only my party gets to select Supreme Court justices” is not really a workable political norm. At least, not if we want a working Supreme Court.
Of course, that’s not actually how this is likely to play out. If Democrats simply blanket refuse to allow a vote on any Supreme Court justice Trump nominates, Senate Majority Leader Mitch McConnell will probably get rid of the filibuster for judicial nominations–and he will be justified in doing so. However outrageous the provocation, Democrats would be responsible for a further escalation.
It seems unlikely that McConnell would refrain from blowing away the filibuster if Democrats keep this up. But even if he did, Trump could simply keep sending nominees to the Senate, and force them filibuster each in turn. Democrats will have a large and attentive audience as they proudly state that they will not allow any conservative to take a seat on the Supreme Court under any circumstances, which is unlikely to draw rave reviews ahead of midterm elections that already look kind of bad for Democrats.
Of course, at the point when the political heat has gotten too hot, and swing-seat senators are coming under pressure to break the filibuster, they might not have Neil Gorsuch to kick around any more. They might be looking at a nominee who makes them long for the halcyon days of a well-credentialed Scalia 2.0 if they get Trump’s dander up. And that vision should make them shudder.
They can try to hold the filibuster for the remainder of his term explaining that they were forced to it by Republican tactics (even as McConnell either refuses or fails to use the tactic that would stop the filibuster). But there they have a problem: the American public as a whole does not believe that Democrats have a sacred right to a Supreme Court majority. They don’t believe that about Republicans either, but “let’s wait until after the election” sounds almost reasonable compared to “Let’s never allow the other party to fill a Supreme Court seat again.” Especially when that means a five year vacancy on the highest court of the land.
So I’m struggling to see what the point of this is, other than revenge. I do see why people want revenge. And revenge can play a useful role in politics, policing the worst excesses of the other side.
But there’s a reason that they say revenge is a dish best served cold. People who seek vengeance without stopping to count the potential costs to themselves often end up hurting their own side worse than the enemy. Democrats are already in an electorally vulnerable position, and facing a president who uniquely terrifies them. That’s probably a good time to stop, take a careful assessment of their tactical position, and imagine what battles they might need to hoard their ammunition for. Instead, they seem prepared to storm the barricades with all guns blazing. Unfortunately, the American system of justice, and perhaps even the Democrats themselves, are the ones most likely to be wounded by the engagement.
Contact Megan McArdle at mmcardle3@bloomberg.net.
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