Wednesday, February 1, 2017

Gorsuch, the Democrats and the future of the Supreme Court

Neil Gorsuch will be confirmed to the Supreme Court, barring some strange new revelation.  A year ago, Mitch McConnell made a really unprecedented move by announcing that the Republicans would refuse to confirm any nominee Obama might make to replace Scalia, despite the fact that he had a year left in his term.  It would have been disastrous had Clinton won, but she didn't.

And the filibuster is already functionally gone.  Back in November, I did a brief series (links below) on the future of the filibuster, and the basic point is this:  it is an illusion.  The Republicans can end any filibuster they want, any time they want, with 50 votes in the Senate, plus Mike Pence.  In fact, they don't even need Mike Pence.  They can just do it with 51.

How badly do they want that Supreme Court seat?  Badly enough to blockade it for a year in defiance of all norms and precedent, knowing that it could blow up in their faces if Clinton won.  So:

Case 1:  Democrats filibuster

Republicans use the nuclear option to get rid of the filibuster for Supreme Court nominations, extending what Reid did a few years back.  Gorsuch is confirmed.  Given what McConnell did last year, there is no way they let the Dems filibuster any Trump nominees.  Ever.

Case 2:  Democrats don't filibuster

Gorsuch is confirmed.

In either case, Gorsuch is confirmed, so functionally, Democrats cannot filibuster.  That is why I say the filibuster is an illusion.

Which way does it play out?  Who cares?!  The end result is the same.

Where do we go from here?  Gorsuch will sit on the Supreme Court because Mitch McConnell blockaded a Supreme Court seat for a year to keep Obama from filling it, after years of treating him as an illegitimate president.  In 2016, Trump won with assistance from James Comey and Vladimir Putin, and filled that seat with Neil Gorsuch.  Every 5-4 ruling that Gorsuch tips will, to liberals, appear illegitimate.  Response?

Court-packing?  The next time Democrats get unified control, do they actually go through with what FDR backed away from doing and expand the Supreme Court to outvote Gorsuch?  Would it really be that much more extreme than what McConnell did?

All political norms are dead.  If I were advising the Democrats at this point, I would tell them to plan on the following:  try to take back the Senate in 2018 (difficult, but plausible), hoping for utter disaster over the next two years (more than plausible).  Then, block all Trump appointments to every office everywhere, expanding the McConnell approach.  Try to take the whole shebang in 2020 and go for court-packing.  If all norms are dead, there's nothing else.

Links to the November filibuster series:

Part I
Part II
Part III
Part IV
Part V

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