Justice, Politics, SCOTUS, Supreme Court

Republicans Can Bust The Gorsuch Filibuster, But Can They Take What Happens Next?

The Democrats had to filibuster. The Republicans left them with literally no other choice.

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What happens“You see what happens, Larry? This is what happens when you f**k a stranger in the a**, Larry.”

— Charles Schumer (D-NY), Senate Minority Leader

I honestly don’t know how the Republican Party thought this would play out any differently. Once they decided to deny Barack Obama, the first African-American president, his constitutional authority to nominate any person to fill Antonin Scalia’s seat, how else could Democrats respond? How could Democrats ever vote for another nominee of a Republican president when the Democratic president’s nominee wasn’t even given the courtesy of a vote, or even hearings?

The Republicans STOLE a seat on the Supreme Court. They stole it from a man, a black man, whom they spent eight years trying to de-legitimize by questioning his very birthplace. The final ignominy visited on Obama for the crime of being black in America was to limit his constitutional authority to seven years, as opposed to the eight he won at the ballot box.

They stole this appointment, and then handed it to a bigoted, sexist, con man who may have colluded with a foreign government to influence an American election.

AND THEN, instead of nominating a centrist choice — an older, middle-of-the-road sort, the Republican version of Merrick Garland, if you will — the Republicans went for the moon and nominated the most hard-core original/textual/Scalia-but-younger clone they could find.

What did Republicans think the Democrats would do? Accept it? To accept this, the Democrats would have to be as weak as the Republicans always accuse them of being. Weak, not just in strength, but in commitment. In tenacity. A Democrat who would roll over and accept this as “politics as usual” is UNFIT to lead men and women.

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The Democrats had to filibuster. The Republicans left them with literally no other choice. To not filibuster, the Democrats would have to concede their very DIGNITY.

Republicans, of course, still have choices. They are in power, and they can use the raw power of their bare Senate majority to change the Senate rules and confirm Supreme Court nominees by a simple majority vote. Senate Majority Leader Mitch McConnell has given every indication that he is willing to do so.

Which I’m fine with. Let that be his legacy. Mitch McConnell: the man who destroyed the Senate confirmation process to get what he wants.

Of course, if he does that, if he pushes through this Supreme Court nominee, after denying a hearing for the previous nominee, despite the objection of 49 of his colleagues, what does he expect the Democrats to do next?

Will the Republicans, once again evidently, expect the Democrats to take it, like it, and just accept it?

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Maybe this time, McConnell should play the tape all the way through the end. Republicans deny Garland a hearing, Republicans win the White House, Republicans nominate conservative darling, Republicans obliterate the filibuster, Republican Supreme Court screws over Muslims, Mexicans, gays, women, labor unions, and whoever else they can over the next few years. Everything seems awesome, right?

But, eventually, another Democrat will hold the White House, and most likely, Democrats will someday again control the Senate. What happens then?

I’ll tell you what: court packing. If Democrats come to power while facing an illegitimate Republican majority on the Supreme Court because Neil Gorsuch still sits in Merrick Garland’s seat, the first issue up for consideration will be court packing.

Republicans like to point out that the Constitution does not require the Senate to give the president’s nominee a hearing. They’re right. You know what ELSE the Constitution doesn’t specify? How many people sit on the Supreme Court.

Confirmation hearings and “nine justices” are norms, not laws. ALL MCCONNELL AND TRUMP DO IS BREAK NORMS. How can you expect any future Democratic administrations to adhere to norms when the wheel comes back around?

Franklin Roosevelt tried to pack the Court. History says he “failed.” Reality says that he successfully bullied the Court into shutting up and letting him push through his New Deal policies without further constitutional objection. But Roosevelt did not have the support of the people to change the longstanding norm on the Supreme Court. He had that support in other ways: presidential terms limits were a norm, and FDR blew right through that norm.

And NOW we have the 22nd Amendment, ratified in 1951, when the president of another party was in charge and able to respond to the previous party’s excesses.

The GOP obstructed Garland, the Dems are obstructing Gorsuch. If the GOP wants to bust the filibuster, they had better think through what happens next.

The brutal exercise of raw power tends to beget the brutal exercise of raw power.

Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.

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