Democrats in the U.S. Senate now have 41 votes committed to filibuster the nomination of Neil Gorsuch to the Supreme Court, which in Olden Times would have meant the nomination was good and blocked, and the president would probably say, “Well gosh, if there’s no bipartisan consensus, I guess maybe I should look at that Garland fellow again.” Or not quite that, but the point is that every other successful Supreme Court nominee has managed to get at least 60 votes, and you might think a united opposition to a clearly unfit nominee — a guy who says truckers should freeze to death and people with leukemia have no recourse if they’re fired for not wanting to die from an avoidable infection — might count for something. Even now in the age of Hyper-Partisanship, if not Aquarius.
Instead, what’s almost certain to happen is that the Republicans, having stolen a Supreme Court nomination from an actual serving president, will in a fit of very high principles toss out the filibuster on Supreme Court nominees, ensuring that Donald Trump will get the Justice he carefully picked from a list provided to him by the Federalist Society. And a brand new Supreme Court member will be sworn in with a simple majority, then go on to create all sorts of judicial havoc in the name of making America great again.
The last four Democratic votes needed to vote in the Cloture Wars were Dianne Feinstein of California, Patrick Leahy of Vermont, Christopher Coons of Delaware, and Mark Warner of Virginia. Leahy, the longest-serving member of the Senate, called Gorsuch’s answers to questions during his confirmation hearings “excruciatingly evasive,” which seems a bit nicer than really necessary.
“I cannot recall a nominee refusing to answer such basic questions about the principles underlying our Constitution and about how he interprets those principles,” Leahy said. “These are fundamental questions that we should ask every nominee seeking a lifetime appointment to our highest court.”
Leahy also said he was sorry the filibuster rule would likely be pitched by the end of the week to install a Justice few Democrats can stomach, but that doing what he could to stop Gorsuch was more important than preserving a Senate tradition.
“I cannot vote solely to protect an institution when the rights of hard-working Americans are at risk,” he said, “because I fear that the Senate I would be defending no longer exists.”
Republicans, needless to say, were shocked, shocked that Democrats would risk harming the beloved Senate and its traditions, as if the Republican refusal to even hold hearings for Merrick Garland hadn’t done a fine job already of dynamiting normality in the Senate. Lindsey Graham fretted that the Senate was entering an era where “you don’t need one person from the other side to pick a judge,” which he feared would lead to even more nasty partisanship — again, as if runaway partisanship in 2016 hadn’t already made that inevitable.
There was also much tut-tutting about how this was all really the Democrats’ fault to begin with, since they wouldn’t let Robert Goddamn Saturday Night Massacre Bork join the Supremes in 1987, which rather misses the point, if you want to talk about bipartisan opposition to a terrible judicial nominee:
In any case, assuming Gorsuch doesn’t suddenly notice that other SCOTUS candidates who couldn’t get at least 60 votes withdrew from nomination — he might ask Chief Justice Abe Fortas about that — the filibuster rule will be tossed out by the end of the week, and then the Federalist Society can have its man on the Supreme Court to advance the agenda of the wrecking crew.
This is where we might hope for some road back from the judicial abyss, but as things stand, the Senate may as well formally pass a rule specifying that only Republican presidents can get their nominees confirmed, forever. Maybe David Brooks will explain how we can fix this mess by all being as reasonable as David Brooks.
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