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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Saturday, February 04, 2017

Blocking Gorsuch

A few more words on the Gorsuch nomination to address a topic that I addressed elsewhere.

On a basic level, "It's Not About Judge Gorsuch." It is reassuring on some level that legal types can say this (Dawn Johnsen's Slate piece is very good; it is linked there), especially when there is some pushback that the Democrats should be "reasonable" and not go for a sort of "tit for tat" or whatever "yeah, you were screwed, but time to move on" language was used (the first part not always there).  And, we have some reasonable sorts, including Trump critics like Neil Katyal suggesting Democrats should support him, since he's pretty reasonable and all that stuff.

Blah. Various same old same old stuff, mixed with some b.s., arise. The first link provides some good remarks but for some reason tosses in:
"Democrats did more than Republicans to make ideology a standard ground for rejecting a professionally qualified nominee."
No.  I provided a sort of thumbnail argument in comments here, after noting that I think if anything Republicans are worse. But, trying to be fair, I said that maybe it's fairly even.  It's hard to formulate though I know there are attempts to argue Republicans are worse, at least in the Obama years.  But, you need to go into the weeds there, which is hard and basically so few actually care.  The basic idea that ideological battles go back/forth is a lot easier, plus the more pure wrong of simply saying "no" to any sort of "advise and consent" in the case of Garland. Again, Dawn Johnsen spells out an argument, as do two letters linked here.

The fact Sen. Biden once suggested something kinda the say ("kinda" since it wasn't) aside, "both sides" didn't do THAT. And, know many don't believe it, isn't clear Democrats would have. I personally think there is a good chance they are more risk adverse and open to such a blatant move given the facts on the ground for Republicans at the time.  And, if they played hardball, Republicans would have quite an argument for playing hardball in return at this time.  I go back to the basic idea no one side was pure in the judicial ideology wars though Republicans blocking any confirmations in the D.C. Circuit or those to the National Labor Relations Board in order to have a quorum [part of the backstory to why the filibuster for appointments below the Supreme Court was ended, not merely "Harry Reid" playing hardball "stupidly" since a long term pol didn't realize long term politics here ... ignorance in the arguments piss me off] underlines there is a good argument that one side of late ratcheted things up. 

Some pest elsewhere cited a 2008 scenario, which is not the same situation -- Obama was favored to win there for one thing.  2016 in time (though, yes, at first less so) looked rather bad for Republicans.  And, their "just say no" policy was of a piece with their general response to Obama.  Democrats did not have a similar consistent response to George Bush as seen from the opening support of Blue Dogs to his tax policy on. Finally, who is to know what the Democrats in 2008, back when there was still a filibuster and more concern for traditional Senate practice?  If Stevens died in 2008 and Bush nominated some older conservative the Democrats supported in the past, it would also not really be in his basic character.  But, they simply could have had hearings and defeated the person in an up/down vote.  That is what was done with Bork and then Kennedy was confirmed in an election year.  So, in a different situation, Dems didn't have to do what Republicans did.  And, if they did? Republicans could play hardball and I would say "yeah, I would do THAT in their place."

Anyway, going back to that first blog post I cited, a reply challenged my history.  In a selective and misleading way.  A blatant example was alleging I "neglected" the Democrats responding to the Fortas defeat (the basic reason they did underlines it wasn't as basically merely on the merits and I even said it wasn't just ideological) by blocking two nominees. I went out of my way to add a new comment to avoid just such a "hey wait, you are being hypocritical" type comment.  I also phrased my very first comment the way I did to try to be evenhanded about both sides having ideological battles.  In fact, a theme of mine has been that this went on since the beginning.  My argument is that Democrats didn't do "more" here.

And, I don't think they did.  One argument made is that Republicans like Nixon/Reagan (to belabor my attempt at being fair, note I left out Ford and Bush41) nominating people isn't the same as Democrats blocking. But, a "professionally qualified nominee" was "rejected" ab initio, so to speak, in the process.  And, yes, ideology was the key reason behind blocking Fortas, pointing to things like advising the President (they didn't realize he lied about it, yet another non sequitur in the comment) when past justices did just that somewhat lame. The general idea again is not that Democrats didn't use ideology when nominating judges, though (sigh) it isn't wrong that Carter and to probably a lesser degree Clinton was less gung ho about it overall.  It is that Democrats shouldn't get more blame.  

Anyway, Bork alone doesn't make the case here. If Reagan appointed someone a bit less of a perfect storm of awful, the nominee might even have been confirmed, though again the situation was ripe to go against him with the swing vote, Democrats regaining control of the Senate, Reagan in a weak position, etc.  Republicans blocked lower court nominees in the Clinton years among other partisan hardball moves and after fifteen or so years, it reached the Supreme Court. And, even there, the Democrats split over Roberts, only a strong conservative for swing vote O'Connor seat resulting in most Democrats voting "no."  No filibuster though, a faux attempt with twenty or so senators voting for it not counting.

So, where is the grounds to put more responsibility on Democrats? That after a series of events, that things really came to a head and they voted against Supreme Court justices in the process?  Why?  A series of events occurred first. And, even regarding lower courts, the "Gang of 14" eventually set forth the "extraordinary circumstances" rule and a bunch of controversial appellate judges were confirmed. Citing Estrada repeatedly doesn't change any of this.  If we want precedents, since Republicans controlled the Senate, they were able to block hearings of various Clinton nominees.  This was a "filibuster" is all but name.

Anyway, all this history might be forgotten, even though is isn't that long ago and I lived through a lot of it online.  Fine. Let's focus on the short term. Consider the two letters cited at that link.  One speaks of "an outright refusal to even consider his nomination," which is not what will happen if the Democrats filibuster Gorsuch, since I gather there aren't forty senators to stop even hearings.  Even the most conservative Democrat around, if one who supported gun regulations and so forth, by one thing I read is sympathetic to a sixty vote rule for Supreme Court judges while saying the Democrats were wrong to end it for other nominations.  So, Democrats have a ground of principle contra to some arguments.

[An argument is made here that blocking Garland was done in an "unconstitutional" way given the demands of the Constitution. I'm unsure about that exactly, though to cite the main post at the link, it was "deplorable" and basic bad normative behavior as a matter of constitutional practice.  I think that is strong enough to warrant a strong response here. Also, Johnsen tosses an amusing comment that a OLC head -- the role she was up for when she was blocked -- should be confirmed because "This president is in desperate need of good legal advice."]

The second letter ends on a more tricky note: "holding hearings and providing an up-or-down vote on the nominee" though earlier notes waiting until "next president is elected" is problematic. I'm inclined to think one or more of the signatories very well might oppose a filibuster. Still, in theory, a sixty-vote threshold would not necessarily violate the principles of the letter.  Plus, once bad faith is shown, a rightful reply arguably exists to try to enforce basic norms.  Finally, there is simply a strategic partisan value in a show of force, incluing to rally the base and show strength. This is true even if you lose the ultimate battle in the short term. 

A final concern is that if the Democrats filibuster, the Republicans will end the filibuster and it will hurt the Democrats if they want to use it later. Eh. A similar argument, sometimes in "I told ya so" tones, is made about ending of the filibuster for executive nominations generally.  This ignores the context where Obama's nominations were repeatedly blocked as well as the basic value to Democrats as the governing party to support majoritarian order and government over merely blocking things.  The "keep the ammo" dry argument didn't work with not voting against Roberts, did it? Alito wasn't filibustered.  And, what harm will come to Republicans to end the filibuster later?  The idea offered by one person is that Trump might be more unpopular.  Seems a reach.

Plus, a show of force and unity now will help the Democrats, who also now have an additional reason beyond ideology to filibuster.  It bothers me in fact that more senators -- including my own Sen. Gillibrand from her Facebook post that focuses on his ideology, which is fine as an additional reason -- are not using Garland as a core reason here. There was serious anger at the idea that in effect Obama was robbed of a Supreme Court seat from those who care about this stuff.  But, the lack of support of Garland is tragically of a piece -- the judiciary and Garland in particular poorly addressed during the 2016 campaign season, including during the convention.  The idea they needed a black or woman nominee there given the stakes is asinine.

Anyway, the opposition is key and some do bring up Garland.  Republicans from McConnell on down bs-ing about the desire to treat Gorsuch fairly here plays into their hands.  Schumer has had some fun there including using a letter from McConnell regarding vetting Obama Cabinet picks. Stephen Colbert played a clip where the first term of Obama was alluded in respect to Supreme Court nominations. You know, when Democrats controlled the Senate and Garland wasn't being nominated.  The blatant b.s. is not akin to the "Bowling Green massacre," but it's pretty blatant.

Bush v. Gore upset me on basic fairness grounds.  People wanted to make it merely partisan -- sure, your guy lost.  Obviously, that made it particularly upsetting, but sorry ... fairness was key to me at the time.  And, the same today.  Not having hearings was so blatantly wrong.  If you just say "we are different" and "move on," how are norms enforced? It just invites them to do that again the next time because they won.  It's not like they will have shame or something. Again, I thought Clinton would win and the whole thing would be somewhat moot.  So, politics does come into it.  So be it.  That too makes it key for Democrats to fight.  Various accounts make Gorsuch somewhat unappealing, let's say, on the merits.  But, didn't really expect much there.

It's easy though.  A perfect storm of awful.  FIGHT!

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