We’ve ordered one fresh copy of “Profiles in Courage” for U.S. Senator Claire McCaskill. Her political analysis regarding the Gorsuch confirmation process is spot-on. She understands the larger war within which the Gorsuch nomination is a small (yes, small) battle. No doubt Senator McCaskill is capable of understanding and articulating the key principal from the Democrats’ perspective. But in the weakest tradition of partisanship, she sacrificed the major principles for the minor one. Senator McCaskill succumbs to partisanship.
She is a willing co-conspirator in the Democrats’ theft of the advise and consent responsibility from a long history of bipartisan respect. She, and most Senate Democrats, act as if political warfare is and should be the norm. We won’t review the history of Supreme Court nominations, other than to note that this is the first (and only) time in American history that a nominee is the victim of a solely partisan filibuster. Shame, shame, shame.
Confirmation Process Reduced to Rubble
Senator McCaskill chose to permanently compromise the Supreme Court Justice selection process. She votes to forever change the nomination game. The filibuster has served as a nominating guard rail. It has steered Presidents to drive their nominee selection nearer the center of the road. But with the guard rail soon removed, as Democrats now insist, each party’s President is free to drive as far to the side of the road as he wishes. He is free to be emboldened and uninhibited if his party rules the Senate. He can select extremely partisan nominees, and go as far towards any extreme as he wishes. The country will wind up with a purely partisan court. One day, and then forever, subject to the whims of the majority party. Perhaps this is good. We think not.
So here’s the esteemed Senator’s analysis. See if you can find her core motivating principle. We can – but it’s called petty politics, not principle.
It’s Really Not About Judge Gorsuch, As Democrats Know
So Senator McCaskill succumbed. But let’s go through the simple path that took her there.
First, as she put it, “there is enough in his record that gives me pause . . . so I am very comfortable voting against him.” And what did she site in his record? His opinion in Thompson R2-J School District v. Luke P.. In this case Judge Gorsuch ruled against funding for placement of an autistic child under the Individuals With Disabilities Education Act. We quote Noah Feldman, constitutional law professor at Harvard and former clerk to Justice Souter, about the legal logic within Judge Gorsuch’s opinion:
As it happens, the law regarding the proper standard to apply in such cases is uncertain – so much so that the Supreme Court is considering it this term. The 10th Circuit standard, which Gorsuch helped craft, may be too narrow; I certainly think so. But it’s a plausible reading of the existing precedent. It would be nice if Gorsuch had pushed for a more inclusive, and arguably more progressive, standard. But it doesn’t show a lack of sympathy for autistic kids – especially when you consider that wealthier parents are better placed to go to court and challenge state determinations of what resources should go to their disable kids.
Editor’s Note: The Supreme Court recently over-turned the opinion.
So, Senator McCaskill, Judge Gorsuch reached a legal conclusion that was a “plausible reading of the existing precedent.” That’s what judges do. You may disagree with his conclusion for policy reasons, Senator. But Judge Gorsuch is not supposed to be a policy-maker. He’s a jurist, and his judicial judgment was supportable under the law. There’s no basis here for opposition. Mr. Feldman’s article, quoted above, similarly analyzes the two other Gorsuch opinions that draw flak from Democrats. Mr. Feldman debunks those concerns, from a legal analysis perspective, as well.
Revenge – Bring Me the Head of Neil Gorsuch
Second, Democrats remain, allegedly, furious over the failed Merrick Garland nomination. That issue has been hashed and hashed, and we won’t re-hash it here. But they feel violated and abused. They believe their “injury” justifies whatever response they select. They are the bigger, and of course principled, side.
Democrats believe that the larger principal is a bitter partisan battle. They want Judge Gorsuch’s head on a stick, cost be damned. Whether you believe the rhetoric that Judge Gorsuch is too this or too that, we suggest you shouldn’t. Partisans, guerrilla fighters, find partisan justifications for their tactics. They doomed Judge Gorsuch before he was nominated.
A filibuster of Gorsuch is merely a political counter-punch. Democrats submit on the most base level to flailing for the sake of flailing. They are gladiators in the Coliseum and simply want a roar from their crowd. They punish Republicans for their unwillingness to hold a Garland hearing. The principal here comes from kindergarten. Tit-for-tat.
But even Senator McCaskill is keenly aware of the monster problem inherent to that approach. She knows Republicans will not allow Justice Scalia’s seat to remain empty indefinitely. She realizes that “by the way, Gorsuch was one of the better ones” on President Trump’s list of possible nominees. If the Democrats filibuster Gorsuch and succeed (though that is highly unlikely), a subsequent Trump nominee will probably be even less acceptable to Democrats.
Sacrificing the Filibuster in a Futile Effort to Kill Gorsuch – Simply Increases Risk of A Court Shift Away From Democrats
But there will not be an infinite regression here. Ultimately, the Republicans would never allow filibuster after filibuster. They will fill the Scalia seat with someone they view favorably.
As a result, the inevitable risk to the Democrats under this approach is that President Trump selects someone far more extreme that Gorsuch. And the incentive to do so, after a series of filibusters, will be so high as to almost assure that outcome.
Senator McCaskill herself recognizes the inevitable consequence of this strategy:
So they pick another one off the list and then they bring it over to the Senate and we say no, no, no, this one’s worse. And there’s not enough votes to confirm him. They’re not going to let us do that too long before they move it to 51 votes.
Under this approach, as Democrats would have it, they deploy a series of filibusters until another Democrat wins the White House. This strategy leads directly to the end of the filibuster. If the Democrats goal is to protect the perceived composition of the Supreme Court into the future, this is a 100% loser approach.
So It’s All About Politics – A Loser’s Bet
Third, all this makes clear that the Democrats goal is not to protect the future composition of the Court. To state the obvious, Gorsuch is simply replacing Scalia. He does “no harm” to the Court’s composition. His confirmation preserves the status quo.
So this war is not over maintaining the status quo. The Democrats realize this and had no expectation that Republicans would approve a shift from the status quo towards a more progressive Court. Yet Democrats force the elimination of the filibuster anyway. They must believe they will harvest political benefit from their opposition. But this is really a poor bet. Political gain, if any, may be difficult to measure and even harder to sustain. And there are only associated costs.
But where does Senator McCaskill fit in with all of this? She realizes that the meaningless end of the filibuster over a status quo appointment produces no tangible benefit. And she recognizes the great harm that may result:
So they move it to 51 votes [ending the filibuster] and they confirm either Gorsuch or they confirm the one after Gorsuch. They go on the Supreme Court and then, God forbid, Ruth Bader Ginsburg dies, or Kennedy retires, or Breyer has a stroke or is no longer able to serve. Then we’re not talking about Scalia for Scalia, which is what Gorsuch is, we’re talking about [a new] Scalia for somebody on the court who shares our values. And then all of a sudden the things I fought for with scars on my back to show for it . . . are in jeopardy.
Senator McCaskill Succumbs – It’s Politics Over Principle
Let’s distill it all down. There’s no principle behind Senator McCaskill’s decision to participate in the filibuster. Her support of what is likely to be an ill-fated filibuster enhances the likelihood that she forces the political shift on the Court that she claims she most fears. Democrats have chosen terrorist tactics and in a war they can’t win. On an issue of principle perhaps several Republican Senators would join the Democrats – to preserve a filibuster as a fair-game tool in a contest where the balance of power on the Court might be at stake. That could have been possible for the next open seat on the Court. But that opportunity will now be lost forever. Perhaps that is a good thing, perhaps not.
But one thing’s for sure. This skirmish has nothing to do with a worthwhile principle. Unless, of course, one believes in elimination of the filibuster. But, we would suggest, the best time for the Democrats to do away with the filibuster is when Senator Reid elected to do it – when it directly benefits them. This time, it doesn’t. And the Democrats are left without principles in this fight.
Perhaps someone, somewhere, believes it’s a good thing for the two American parties to continue to wage internecine warfare. We suspect most of the American people do not agree. Certainly not those who are in the middle.
In fairness to Senator McCaskill, she is far from alone in elevating politics above principle. Senator McCaskill succumbs, but she has many friends. We should probably order a bunch more copies of JFK’s book for a whole lot of her colleagues.