The Democrats Supreme Court blueprint for the Neil Gorsuch fight is evolving. And it must. Democrats must cool off from the first weeks of the Trump presidency or they risk stumbling into a disaster. They must focus dispassionately on their long-game. And there’s a very important long-game to be played, with very serious consequences to the Democrats and their agenda if they play it wrong.
The Republicans Will Not Allow the Court’s Ideological Balance to Shift
The Court’s composition with Justice Scalia was reasonably divided. Four progressives, four “conservatives,” and one swing vote. His death opened a seat on the conservatives side. His replacement with another conservative justice does not alter the Court’s balance. The Republicans will not tolerate a shift.
Republicans therefore have everything to lose if they fail to retain the Scalia seat. Moreover, with a Republican president and senate, Democrats have no expectation that any nominee to replace Justice Scalia would be a progressive. The President wouldn’t do it, and Senate Republicans wouldn’t allow it. Republicans will not promote an ideological shift in the Court’s composition against their interests. Democrats of course know this.
Therefore, Republicans will allow only one outcome in this battle. They cannot accept any outcome other than holding onto the Scalia seat.
Democrats Have Nothing to Gain in a War Over Judge Gorsuch- There is No Reason to Fight Over the Scalia Seat
Democrats, on the other hand, have nothing to gain in this fight. Sure, conceptually they could claim they are fighting to pick up the seat. But they appreciate Republicans will never allow a non-conservative to fill Scalia’s seat. At least not under current circumstances. Democrats have a zero-probability chance of winning the seat.
Democrats should only wage an all-out fight in two cases. First, when they have a chance, even if an unlikely one, of securing a very meaningful win. The obvious example would be the chance to create an ideological shift on the Court towards progressives. Second, when a loss would cause meaningful or irreparable damage to their position.
Neither of these two circumstances are presented in the case of Judge Gorsuch. First, Democrats cannot secure a meaningful win. Second, a loss will not damage their position because the Court’s ideological split will remain intact. Democrats will, and arguably should, fight to prevent an ideological shift against their interests. But the risk of that shift exists only when a progressive seat on the Court is vacant. That is not the case today.
Judge Gorsuch Might Be Better for Democrats Than they Admit
In fact, we suggest that the Democrats may yet gain from Judge Gorsuch’s confirmation. A Justice Gorsuch may cause a shift within the conservative camp. He is not a carbon copy of Justice Scalia. He appears far less inclined to apply principles of judicial deference and majority rule than was Justice Scalia. There is a clear and on-going ideological divide within the conservative ranks between the “majority rule” and “libertarian” philosophies, a subject worthy of a long discussion. We omit that for now. Where and how a Justice Gorsuch will fit in will only only be clear many days from here.
Democrats can easily accept Judge Gorsuch. His confirmation is an outcome they cannot prevent. They would need the support of several Republicans to win that war. That’s a gambit difficult gambit to pull off. More importantly, they lose nothing in a lost battle over Judge Gorsuch. His confirmation does not adversely alter the Court’s ideological composition.
Democrats Have Everything to Lose in an Unnecessary War That Would Force Republicans to Launch Their Nuke
On the other hand, if the Democrats proceed with an ill-advised war, the consequences to them can be devastating. And the damage would likely spread well beyond the Supreme Court nomination process. The Democrats must avoid an all-out war because the risks are enormous (with nothing to gain).
From the Democrats’ perspective, a war here has no strategic purpose. The replacement of Justice Scalia with Judge Gorsuch maintains the progressives position on the Court. The Democrats Supreme Court blueprint should not allow for a nuclear launch.
War should be fought when survival is at stake. But there is simply no strategic reason to wage war here. Not with Republicans holding the “nuclear” retaliatory weapon in their hands. So let’s focus now on the risks to Democrats of nuclear war and nuclear fallout.
Democrats Supreme Court Blueprint – Without a Change of Course Nuclear Fallout Could be Extreme
If the Democrats force a Republican launch of the nuclear weapon (elimination of the filibuster) the result would be devastation. A launch now will extinguish the Democrats’ chance to preserve the Court’s status quo if a progressive seat opens during the Trump Presidency. Once the nuclear weapon is used, it can’t be put back. President Trump would be free to nominate, say Judge William Pryor, Jr., who Democrats would detest. Judge Pryor would surely shift the Court away from progressives for what could be a generation or more. Democrats will walk onto a future Supreme Court nomination battlefield with no chance of preventing an ideological shift.
The Democrats lack a true deterrent in any nuclear showdown. A Republican launch can both destroy the Democrats and assure Republican ownership of future Supreme Court seats, at least while they hold the Senate and White House.
The Democrats lack any meaningful retaliatory weapon. They may believe that they can block and obfuscate throughout the remainder of the Trump administration. But if the nuclear weapon is launched by Republicans now, the Democrats will be sorely mistaken. In our view, once the Republicans set a nuclear-use precedent in the context of a Supreme Court nomination, there is little to stop them from deploying it across their legislative agenda. For the Democrats, that represents complete devastation.
Democrats Supreme Court Blueprint – In a Nutshell
So here’s how the table is set. The Republicans nominated a person who does not alter the Court’s ideological bent. They have everything to lose if they don’t hold the Scalia seat. Therefore, there is no chance that the Republicans will surrender that seat to the progressives. The Democrats, on the other hand, have little to gain by fighting here. A loss to the Republicans does not alter the Court’s ideological mix.
The Republicans must win the Gorsuch battle to preserve the status quo. They have the tools to win, one way or the other. They also have a nuclear weapon in their quiver. That weapon, if used, will cause irreparable harm to the Democrats. And the end of the filibuster, we suggest, does terrible damage in the eyes of those who believe that majority power, unchecked, is dangerous to our republic. But we hear little concern for the sake of the country.
The Democrats, on the other hand, cannot win the Gorsuch battle. If they lose through the traditional confirmation process, they suffer no permanent damage heading into the next war. But if they force the Republicans to launch that nuclear weapon, then launch the Republicans must.
A Clear Path Forward
The course for Democrats to follow is clear. Proceed through the confirmation process. Satisfy your base and put Judge Gorsuch through the ringer, if you must. If you wish to sacrifice any modicum of decorum then, we regret, you are free to do so. You can take the conversation down as far as you wish. Allow those among your ranks who are in red-state electoral jeopardy to vote with the Republicans. But do not, in the end, force the Republicans to launch their nuke.
Avoid a battle in a fight you can’t win. Fight when it matters. “Work” with the Republicans now, create whatever good will you can. Perhaps you might convince enough Republicans to preserve the filibuster, who knows. You will have improved your hand for that later day when a progressive seat opens on the Court. Because then you can fairly argue that you worked with the Republicans on Judge Gorsuch. Judge Gorsuch was worthy of the seat and you acted reasonably.
Some of the Republicans will respect your later day fight on, say, Justice Ginsburg’s seat. You will have shown a willingness to put down partisanship. You will have won a modicum of appreciation for working together. For respecting both institutions.
Some Republicans may even agree, at that point, that the filibuster should be respected. You need only convince three of them. And that just might work. There are Republican senators with a deep respect for the Senate as an institution, and an appreciation of the filibuster’s role to protect the minority party. This should be the Democrats Supreme Court blueprint. This is the wise course to follow. And it is the only course to follow.
We remind readers that we advocate no position here, either as to Judge Gorsuch or the future composition of the Court. We editorialize without advocating.
What do you think?