President Trump did something shocking on Tuesday. Unlike his choices for the Cabinet, in Judge Neil Gorsuch, Trump appears to have nominated a man for the Supreme Court who, despite being clearly right wing, is qualified, measured, and well respected on both sides of the aisle.
Democrats, who are still stinging from Senate Republicans’ complete and utter dereliction of their constitutional duty to vet and fill the same seat with President Obama’s nominee, Judge Merrick Garland, seem to be gearing up for a major confirmation fight. Giving Republicans a taste of their own medicine would be vindicating ― and in most cases obstructing this President is the appropriate response ― but blocking this Supreme Court nominee would be a strategic misstep at a time when Senate Democrats’ ability to resist the administration and Republican Congressional agenda is particularly tenuous.
Democrats in the Senate face significant pressure to block Judge Gorsuch. The base is fired up and calling for all-out war between Senate Democrats and the White House; for good reason given the dangerous decision-making (see: Steve Bannon on the National Security Council) and unconstitutional executive orders (see: refugee ban) emanating from 1600 Pennsylvania Avenue just two weeks into the Trump presidency.
As painful as it is to reward Senator McConnell and his band of obstructionists for the way they treated the Judge Garland nomination, it is strategically the right thing to do.
Democrats need to take a step back, though, and remind themselves that this nomination is very unlikely to be the only one Trump will make to the Supreme Court. In fact, Trump could make as many as two more in his first term with Justice Kennedy rumored to be considering retirement and Justice Ginsburg getting up there in age.
President Trump has already instructed Senate Majority Leader Mitch McConnell and crew to invoke the “nuclear option” should Senate Democrats obstruct the Gorsuch appointment ― ending the 60-vote requirement to break a filibuster of a Supreme Court nominee and enabling confirmation with a simple majority. Given the near inevitability of future, and likely more conservative, Trump Supreme Court nominations, the last thing liberals should want is to blow up their last hope of blocking confirmations.
Judge Gorsuch’s record is short, but he does not seem to be the far-right wing nominee liberals were afraid would arise from a President controlled by the fringes of the Republican Party. He brings with him solid credentials and the broad respect of the legal community. President Obama’s own Solicitor General Neil Katyal called Gorsuch “one of the most thoughtful and brilliant judges to have served our nation over the last century.”
Based on Trump’s shortlist for the position, however, it is clear the type of far-right wing nominee that deserves to be blocked could be coming next. Imagine the Ginsburg seat opens up next year. Would liberals want President Trump to have a free pass at filling her seat with someone like Judge William Pryor, who was on President Trump’s shortlist this time around and is by all accounts a radical culture warrior eager to overturn Roe v. Wade? If Democrats force Republicans to use the nuclear option to confirm Judge Gorsuch, who is nowhere near as scary, there would be nothing standing in the way of someone like Judge Pryor becoming a justice.
And anyone who thinks Senate Majority Leader Mitch McConnell would avoid using the nuclear option is kidding themselves. Republicans did not spend a year blocking Judge Garland to roll over and let Democrats prevent a highly respected conservative judge like Neil Gorsuch from filling Justice Antonin Scalia’s vacant seat. Republicans will do whatever they can to make sure he gets on the bench, even if it means fundamentally changing the rules and traditions of the United States Senate. They have already showed a disregard for Senate rules and norms when it comes to rushing in Cabinet appointees; why would a Supreme Court pick be any different?
As painful as it is to reward Senator McConnell and his band of obstructionists for the way they treated the Judge Garland nomination, it is strategically the right thing to do. Holding their noses through a Gorsuch confirmation will enable Senate Democrats to preserve one of the few powers they have left for a time when they will need it most: filibustering and blocking a far-right wing Supreme Court nominee that could shift the balance of the court for decades.
And that nomination could be coming next.