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

Thu Mar 23 20:47:03 PDT 2017

Over the years a great many judicial nominees have never had a hearing or a vote. True, they were not Supreme Court nominees. But the same clause of the constitution covers lower court nominations and appointments. So the idea that this was "wildly inappropriate" seems like a bit of selective outrage.

It strikes me as silly to argue that the Garland nomination wasn't extensively debated. The Democrats put on a major push in the spring and summer to make this a campaign issue. To use one crude measure: A Google Search yields 151,000 hits for "Merrick Garland" in the past year. In the first 3 months after his nomination, there were 28,000 results. A google search for Elena Kagan in the 1 year from her nomination yielded just 21,000 hits. In the first three months after her nomination, there were fewer than 10,000 hits. For Sotomayor, the numbers were 18,200 for the first year, 20,600 in the first 3 months. So it looks like Garland got quite a bit of attention.

What Democrats seem to be saying is that the Garland nomination wasn't considered in the way they wanted it to be considered--i.e., in the manner they thought would be most advantageous for putting pressure on Republicans to confirm him. But the Republicans were under no obligation to run the Senate in the manner most favorable to the minority. For example, when the Democrats ran the Senate in 2013-14, they repeatedly scuttled bills (bills that had passed the House, we might add) to amend or repeal Obamacare without any hearings. They did it without hearings because holding hearings would have increased public pressure on the Democrats to repeal or amend significant portions of Obamacare. Was this improper?

Meanwhile, Michael Parsons writes that, "As far as I know, Garland as a candidate was acceptable to virtually everyone." But isn't that self-evidently incorrect? If that were true, he would have been confirmed. What Mr. Parsons means, I think, is that he doesn't think the basis of Garland's unacceptability to the majority was a proper basis for rejecting the nomination. Garland was "acceptable to virtually everyone" based on the criteria Mr. Parsons thinks everyone should have used. Of course, that is different than David's complaint, saying that the *means* for rejecting the nomination was somehow improper. But in any event, it seems to me that that ship (the basis for rejecting the nomination) sailed 30 years ago, though it may be worth noting that the man who nominated Garland, President Obama, jumped on board that ship when it stopped briefly in port in 2006--Obama, recall, advocated and joined an unsuccessful filibuster of Sam Alito that was not based on Alito's experience, temperment, and formal qualifications for the job--the criteria Mr. Parsons seems to think appropriate. And of course, the entire reason that Democrats are now threatening to filibuster Judge Gorsuch is that same ship--they don't think they'll like how they think he will rule from the bench. It has nothing to do with temperment or formal qualifications, or, let's be honest, with Merrick Garland. And of course, a key difference is that a majority of the Senate does appear to approve of, and thus consent to, the appointment of Gorsuch.

True, it might be good to have a little reset here on how we address judicial nominations. But the idea that Republicans committed some unprecedented horror by rejecting the Garland nomination just doesn't stand up. Indeed, in at least one important way, Republicans treated Garland much better than Democrats have treated literally every GOP nominee starting with Bork 30 years ago--they didn't try to slander and smear Garland, distort his record, misrepresent his views and past judicial decisions, and generally try to convince the public that he is a heartless, evil bastard. They just rejected the nomination, as was their constitutional right. One cheer for (relative) civility.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

________________________________
From: Margaret Groarke [margaret.groarke at manhattan.edu]
Sent: Thursday, March 23, 2017 9:52 PM
To: Smith, Brad
Cc: David A. Holtzman; Election Law Listserv
Subject: Re: [EL] J. Gorsuch Will Be Awful on #SCOTUS for Progressives. Democrats Should Not Filibuster Him

Really, it seems silly to say his nomination was extensively debated. The Republican leadership refused to schedule hearings on his nomination. They argued that the President of the United States did not have the right to nominate someone to the Court. It was wildly inappropriate, and I think the Democrats did not fight it in part because they expected to win the election (so much for that), and in part because they have been very poor strategists in standing up to Republican obstructionism.

Let's not pretend that was normal.

On Thu, Mar 23, 2017 at 7:11 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
republicans didn't need to filibuster Garland--a majority of the senate opposed his nomination. I am not sure what you mean when you say he was not "considered"--his nomination was discussed at great length, was it not, and indeed became a major campaign issue. Hundreds of editorials were written, and numerous biographies and backgrounders. The nomination was debated at great length. And every Republican senator-- a majority of the whole Senate--agreed they would not confirm him before the election. He was not "considered" in the particular way you wanted, but was there any reason to do so given the majority opposition?

Sent from my iPhone

On Mar 23, 2017, at 6:52 PM, David A. Holtzman <David at HoltzmanLaw.com<mailto:David at HoltzmanLaw.com>> wrote:

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<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fp%3d91762&c=E,1,9c5CuxG_ez7XpRjQvs_k8Ja9GEzNa9_CHGtzjJNmZHzRyj0FN8qvKJtwFiINboaGOb2sRsIh-9ZNmaJIRIeWEij2MjnQ4FkiA4bxuJUv6ACYWy5EwQ,,&typo=1>
Posted on March 22, 2017 9:26 pm<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fp%3d91762&c=E,1,L49X_eYvEtB7Qul_NZOqL-TIFpHNRJJS04SWucBmvYx0RJ-boCLs1r0bYKaPbbDNZMg0EBmoBrZ0GohMc8H-G3EyGwInK6zVCzhaHhk,&typo=1> by Rick Hasen<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fauthor%3d3&c=E,1,gzm7KpFeeAEYIPwDXTpO79FvcivjWI4OT4ZA9hdA1RFWj4oCwBhbzukKiABPRXMZXBvUmX3aEWXyya2rN30N0HrqoxfmOs9UT_0M0jtqSLxdink,&typo=1>
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<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fp%3d91744&c=E,1,zw5scHWunDsBGr8Oiyx8478PxHZsc7OaNcU0pKx4cSOfrpzcJlCOYpnQaaBRaxIyPJ04Qmi_MWmp1SnmJI8el5I9EegOz3qdWNtJwg,,&typo=1>. I also think we need a bit more clarification on his views. based on misstatements at the hearing<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fp%3d91730&c=E,1,Yb6hFflTSmTJpUaUsNig-l8QFJMv_bxHBIgtLSCGQpbzFOMqkppLaMeBUkIP_f7IMHiWfPpPc8fzFkfpAUf68gwdm1kmi7lyxIaJeBA_i64,&typo=1>.)
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.
<mime-attachment.png><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<https://linkprotect.cudasvc.com/url?a=http://electionlawblog.org/%3fcat%3d29&c=E,1,7OQFh3KQlRgf6rWNRjcTpBDGJGGImwf0MX3zqgbpNJ5LUNhopnz-OJ7jPtDHwsXIim0eS4XdcRDqETKbt9iaEWZhALguBrmAfBUAJ5QvHjg,&typo=1>

[]
--
David A. Holtzman, M.P.H., J.D.
david at holtzmanlaw.com<mailto:david at holtzmanlaw.com>

Notice: This email (including any files transmitted with it) may be confidential, for use only by intended recipients.  If you are not an intended recipient or a person responsible for delivering this email to an intended recipient, be advised that you have received this email in error and that any use, dissemination, forwarding, printing or copying of this email is strictly prohibited.  If you have received this email in error, please immediately notify the sender and discard all copies.

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
https://linkprotect.cudasvc.com/url?a=http://department-lists.uci.edu/mailman/listinfo/law-election&c=E,1,HYLaCx3uVQvQpkTvef3gq8UJXC-vm_oXXSWrWFuwRH4qvEmqiWL7kSrv4vkYBaBgcoeFPU29vtawlJfW6aucA_NX91DuD6UCZ5ROTd465g,,&typo=1

_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
http://department-lists.uci.edu/mailman/listinfo/law-election<https://linkprotect.cudasvc.com/url?a=http://department-lists.uci.edu/mailman/listinfo/law-election&c=E,1,-xQjjK3GloeU5PrPUPGp7L8aWUki3jAqr1doeJk3NrDG6r4PuQW3aoHpKidsmBjtEy9-j4Ebelx-uNl07H0gNhwtEcOzXq8ujnB6BpY,&typo=1>

--
Margaret Groarke
Associate Professor, Government
[https://linkprotect.cudasvc.com/url?a=http://home.manhattan.edu/collegerelations/email_logo.jpg&c=E,1,Gvp8uv5v0FBcOJeC2y3xTvxBmmVx_tdBkIMnssVLqZrxniOTS7_l5y3PlEJ_rU_iPpCiqw_exMD6-9VlBMffu_X-XJN77Grhh5klZemAK6tX0Lgpep3V&typo=1]
Riverdale, NY 10471
Phone: 718-862-7943
Fax: 718-862-8044
margaret.groarke at manhattan.edu<mailto:name.name at manhattan.edu>
www.manhattan.edu<https://linkprotect.cudasvc.com/url?a=http://www.manhattan.edu/&c=E,1,i-iAPwbmQaL0WnfnRkZiVRQwhxNGvH24dWpIAQjwTJTvASFmgtcs_di3FNRj6QrHjuxqw5RsWJXJ2_nAwde5uBhTQoPhTL6xke3gOnuHNzMgG7OL6mW0zQ,,&typo=1>

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20170324/e2ca2fc4/attachment.html>