One of life’s most valuable skills is the ability to properly choose your battles. Being able to assess whether a fight will help your cause or damage it in the long run is a talent that most of us begin developing around kindergarten and then continue to cultivate.
Therefore, it is surprising that Democrats in the U.S. Senate apparently are still learning this essential skill. Led by Chuck Schumer, D-N.Y., the Senate’s minority party is prepared to engage in an unwinnable, damaging, grossly partisan battle over the nomination of Neil Gorsuch to the U.S. Supreme Court. Democrats have indicated that they will filibuster the nomination, which will lead Republicans to invoke the “nuclear option” and remove filibuster protection for Supreme Court nominees.
The Senate is a unique deliberative body in which a filibuster can delay action unless a supermajority (60 percent) chooses to end it. It is a nod to the desire for maintaining decorum and dignity in the chamber, giving power to a sizable minority when such a minority exists.
Yet this would be the wrong time for Democrats to employ that power. Should they, in fact, choose to filibuster Gorsuch’s nomination, they will have chosen poorly.
For one, Gorsuch is hardly the archconservative that some critics have declared him to be. The American Bar Association has unanimously deemed him “well qualified” to serve on the Supreme Court — its highest rating. President Obama’s former acting solicitor general, Neal Katyal, has supported him. For a Senate that has approved the embarrassingly unqualified Betsy DeVos as secretary of education and Scott Pruitt as administrator of the Environmental Protection Agency, drawing the line on a Gorsuch nomination is a foolish exercise in grandstanding.
For another, picking a high-profile fight over Gorsuch will reinforce the notion that Democrats favor a reactionary, activist judiciary rather than one that simply upholds the law. Sen. Catherine Cortez Masto, D-Nev., expressed concern that “his narrow view of the law will hurt the most vulnerable amongst us.” That should not be the purview of the Supreme Court, which is tasked with determining constitutionality rather than establishing policy.
It is understandable that Democrats remain flustered over the Republicans’ obstructionism of Merrick Garland’s nomination to the court. Garland was selected by President Obama in March 2016 following the death of Antonin Scalia, and Republicans declined to consider the nomination until after the November election. The act was egregious, but the fact is that it worked as an appeal to voters — Republicans won the White House and retained control in both chambers of Congress.
But if Democrats are motivated by political strategy in their opposition to Gorsuch, it would seem to be an ill-considered ploy.
If Gorsuch replaces Scalia, trading one conservative for another, it would do little to alter the makeup of the court. The real battle will come if President Trump is afforded the opportunity to replace one of the Supreme Court’s liberal members, when the direction of the court could hang in the balance. Should Trump choose somebody who is unqualified or viewed as anathema to Democrats, it is then that the minority party might lament the loss of its ability to filibuster Supreme Court nominees.
Engaging in a filibuster to halt Gorsuch’s nomination is destined to fail as a matter of policy and a matter of procedure. Democrats should choose their battles more wisely.
