Dems Can’t Defeat Gorsuch; What Should They Seek?

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Senate Democrats are unlikely to block President Trump’s nomination of appeals judge Neil Gorsuch to fill the vacant seat on the U.S. Supreme Court. Filibustering Gorsuch would likely cause the Republicans to do away with the filibuster forever—the so-called “nuclear option”—and to confirm the nominee by a simple majority vote. What could a victory look like for Democrats? Three markers of possible success come to mind, write Dahlia Lithwick and Neil Siegel in Slate. They say victory would require making an effective case to the public that any nominee not named Merrick Garland is per se politically illegitimate. This should be the Democrats’ turn to appoint a justice. Senate Republicans, following candidate Trump’s instruction to “delay, delay, delay,” stole this nomination from President Obama even though he had nearly a year to go in his term, say Lithwick and Siegel. They write that Democrats should insist that Garland, not the late Justice Antonin Scalia, provides the baseline against which to measure Gorsuch’s ideological reasonableness.

Given Trump’s explicit promises and pre-election pledges of constitutional litmus tests, a Democratic victory would require the nominee to rebut the ongoing presumption that he possesses the exact same legal views promised by the president who appointed him. For example, would he to protect even more gun possession in more places and dismantle reasonable gun regulations that states and cities have enacted to protect the public? Finally, Lithwick and Siegel say, victory in these hearings would include Democrats explaining to anti-Trump protesters that “they must vote around the issue of the Supreme Court with the same passion with which they have rallied for justice.”

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