[EL] J. Gorsuch Will Be Awful on #SCOTUS for Progressives. Democrats Should Not Filibuster Him

[David A. Holtzman]

Wouldn’t it be fair to filibuster Gorsuch for 10 months, to retaliate 
for Congress’ refusal to consider President Obama’s nominee during 10 
months of Obama's presidency?

On 3/22/2017 9:36 PM, Rick Hasen wrote:
>
> *J. Gorsuch Will Be Awful on #SCOTUS for Progressives. Democrats 
> Should Not Filibuster Him <http://electionlawblog.org/?p=91762>*
>
> Posted on March 22, 2017 9:26 pm 
> <http://electionlawblog.org/?p=91762> by *Rick Hasen* 
> <http://electionlawblog.org/?author=3>
>
> I have no doubt that a Justice Gorsuch will be awful for progressives 
> on the issues that they care the most about: abortion, affirmative 
> action, campaign finance, voting rights, environmental protection, gun 
> rights, and everything else. I’m even more convinced watching the 
> hearings that Judge Gorsuch fancies himself an originalist and 
> textualist in the mold of Justice Scalia. This means he is likely to 
> be more conservative than Chief Justice Roberts, and could be as 
> conservative if not more conservative than Justices Alito and Thomas. 
> (I wrote about where he is likely to stand on campaign finance and 
> voting rights in this CNN piece 
> <http://www.cnn.com/2017/03/01/opinions/worry-about-gorsuch-hasen/> and this 
> blog post <http://electionlawblog.org/?p=91744>. I also think we need 
> a bit more clarification on his views. based on misstatements at the 
> hearing <http://electionlawblog.org/?p=91730>.)
>
> So should Democrats try to filibuster him? Right now it takes 60 votes 
> to bring Gorsuch’s nomination to the floor. If Democrats hang 
> together, they could filibuster him. That would likely cause Senator 
> McConnell to trigger the nuclear option for Supreme Court appointees 
> (just like Senator Reid, for the Democrats, went nuclear a few years 
> ago for all appointees aside from the Supreme Court). He may have some 
> reluctant Republicans to do that, but my bet is he’d get it through.
>
> So why shouldn’t Democrats do it now, to get attention and to protest 
> the shameful failure of Republicans to consider Judge Merrick Garland 
> for the Supreme Court when nominated by President Obama? I’ve 
> struggled with it but now think it better not to filibuster.
>
> Democrats hold a pair of twos.  They don’t have much they can do. 
> Triggering a fight over the filibuster will gain attention, but 
> Democrats can only do it once. The Gorsuch nomination restores the 
> balance of power on the Court to the position it was in before Justice 
> Scalia’s death.
>
> Imagine if in a year or so Justices Breyer, Ginsburg, or Kennedy leave 
> the Court. Then things get MUCH worse from the point of view of 
> progressives. Then Roberts becomes the swing voter and there goes 
> affirmative action, abortion rights, etc. If you think things with the 
> Supreme Court are bad for progressive now they can get much, much worse.
>
> Better to save the firepower for that fight. It is possible that 
> Senators like Susan Collins would be squeamish about such a nominee, 
> and they might not vote to go nuclear. At that point, people can take 
> to the streets and exert public pressure. At that point, the left will 
> perhaps realize what they lost when they lost the 2016 election and 
> how bad things will be.
>
> Another thing. Lots of Trump state Democratic Senators are coming up 
> for reelection in 2018. Democrats need to hold those seats. Democrats 
> and their allies have not done a good enough job painting Judge 
> Gorsuch as a danger to the rights and issues people care about in 
> those states. They would be put to tough votes if they are put in the 
> position to filibuster. They may not do it, and if they do it could 
> make the more vulnerable in 2018.
>
> So while I’ve vacillated, I now don’t think Democrats should trigger 
> the filibuster now.
>
> The future is uncertain. It won’t buy much now. It might buy more in 
> the future. Maybe in the future Democrats will have better than a pair 
> of twos.
>
> hare 
> <https://www.addtoany.com/share#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D91762&title=J.%20Gorsuch%20Will%20Be%20Awful%20on%20%23SCOTUS%20for%20Progressives.%20Democrats%20Should%20Not%20Filibuster%20Him>
>
> Posted in Supreme Court <http://electionlawblog.org/?cat=29>
>
>
[]
-- 
David A. Holtzman, M.P.H., J.D.
david at holtzmanlaw.com

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