After a contentious start to Neil Gorsuch’s Supreme Court nomination hearings, Senate Democrats are struggling with what the New York Times calls “two options: Get out of the way or get run over.”
But Democrats have a third option, one that should attract moderate “centrists” as well as more liberal senators: fight.
Sen. Michael Bennet, a Colorado Democrat, received some criticism for introducing Gorsuch to the Senate. Bennet’s action was defensible: in normal times, it’s Senate protocol for senators to introduce nominees from their home state. Colorado’s other senator, Republican Cory Gardner, also introduced Gorsuch.
But these are not normal times, and Democrats need to recognize that. Donald Trump, and the Republican Party in general, have succeeded by ignoring “normal” behavior and the protocols of the past.
Nobody’s suggesting that Democrats should behave like Republicans, but it’s no longer “moderate” to pretend that the rules haven’t changed. In today’s world, a vote for Gorsuch is a vote for extremism over moderation.
Here are five reasons why all Democrats should vote against this nomination.
1. A vote for Gorsuch gives Trump a mandate
Trump advisor Roger Stone said it himself. “If Trump is going to be a transformational president, not a transitional president, he needs a supportive court.”
But Trump does not have a mandate to transform the country the way the Supreme Court would with Gorsuch on the bench. Trump’s Cabinet picks, along with his budget blueprint for 2018, have made it clear that he intends to govern from the far right. The blue-collar populism of the campaign has already faded.
As voters have come to know Trump the President, they have increasingly come to dislike him. Only 37 percent of voters approve of the way he’s handling the job, according to the latest Gallup poll, while 58 percent of voters disapprove. As the Huffington Post notes, Barack Obama had a 60 percent approval rating at the same point in his presidency.
It may have been inelegant for the Huffington Post’s headline to say that Trump’s approval ratings are “in the toilet.” Inelegant, but not inaccurate. A vote for Gorsuch is a vote to give Donald Trump the tools he needs to transform the nation in a way that very few people are going to like.
2. Gorsuch’s judicial approach is not moderate
A number of attorneys who appear before the Supreme Court signed a letter last month calling Gorsuch “unfailingly polite.” That’s nice. But Gorsuch is no moderate, and some of his rulings have often been anything but kind.
There’s a reason why Gorsuch was handpicked by two right-wing groups, the Federalist Society and the Heritage Foundation – and it’s not because he judges every case solely on its judicial merits. Sen. Patrick Leahy was right when he said today that Gorsuch had been “selected by interest groups.” These groups chose Gorsuch because he shares their ideology, and because that ideology influences the way he decides cases.
Gorsuch’s ruling in what has come to be known as “The Case of the Frozen Trucker” shows an inflexible determination to uphold the rights of corporations over their employees, even when human life is at stake. He is even to the right of Antonin Scalia on the “Chevron doctrine,” the precedent by which courts favor regulatory agencies' implementation of laws over corporations' interpretations.
Gorsuch's opposition to this accepted practice would gut the ability of government to rein in destructive corporate behavior. As Time magazine noted, this position could “radically reshape government.”
There are also questions about Gorsuch’s web of ties with Colorado billionaire Philip F. Anschutz. Gorsuch has represented the secretive Anschutz, whose business interests range from railroads to sports teams and conservative publications, in shareholder lawsuits. Anschutz in turn successfully lobbied the Bush administration for Gorsuch's appointment to the federal appeals court, and Gorsuch is a business partner with several Anschutz executives.
The nonpartisan Campus Engagement Election Project has prepared a guide to the issues that are likely to be affected if Gorsuch is approved. They include reproductive rights, climate change, campaign finance reform, access to guns, health reform, LGBTQ rights, and the rights of workers to organize.
On issue after issue, Gorsuch has proved himself to be a reliable ideologue for the right-wing – and anything but moderate in his rulings.
3. Voters want Democrats who stand for them
Moderate Democrats who want to maintain support among Trump voters should study a new research paper from the Democracy Corps entitled “Macomb County in the Age of Trump.” It’s co-authored by Stanley Greenberg, who was Bill Clinton’s pollster. Greenberg first studied “Reagan Democrats” in 1985.
Greenberg and co-author Nancy Zdunkewicz found that while many Trump voters are too bigoted to be reachable, many are socially liberal. While these voters still support Trump, at least for the moment, many were disheartened by Trump’s cabinet appointments of “million-dollar campaign donors” and “bankers from Goldman Sachs.” Trump’s tax breaks for billionaires made him seem like “a typical politician.”
That’s the right framework for opposing Neil Gorsuch, whose record shows he would be a reliable vote for big donors and bailed-out bankers. Sen. Al Franken got it just right when he spoke of Gorsuch’s “pro-corporate bias, which I think has been the bias of the court” under the conservative majority Gorsuch would restore.
Moderate Dems can point out that if Gorsuch is approved, the Supreme Court will rule in favor of corporations and against working people. It will continue to lift restrictions on the high-dollar campaign contributions that are killing democracy and stifling the voices of ordinary voters. It will obstruct individual freedoms and endanger our environment.
A vote against Gorsuch is a vote for working Americans – those who are already in the Democratic coalition, and those who are not.
4. Cheaters shouldn’t win
Sen. Dianne Feinstein of California said she was “deeply disappointed” that Merrick Garland, Obama’s nominee for this Supreme Court slot, never even got a hearing. Other Democrats have expressed outrage at the fact that Republicans ignored Senate rules and protocol by burying Garland’s nomination.
They’re right to be upset. But voters don’t care about legislative process, and they’re tired of having powerful people share their feelings about it. Voters want leaders who care about how they feel.
But most voters hate cheaters, and that’s what the GOP did by burying Garland’s nomination: They cheated. As Sen. Dick Durbin said, it’s part of a long-term strategy. If Gorsuch is confirmed, the cheaters win.
Democrats should drop their attachment to protocol and use that word. They can also offer a solution that breaks the logjam without letting the cheaters win: they can propose that Trump nominate a more objective judge, someone who’s a compromise choice the way Garland was. That would make it harder for Republicans to accuse them of obstructionism, and it would be a fair way forward.
5. We need more profiles in courage
The New York Times has argued that Senate Republicans will change the rules to prevent a filibuster if Democrats hold firm against Gorsuch. Here’s a dirty little secret: they probably will anyway. They don’t seem to care about fairness or feelings.
Democrats can’t hold back because they’re afraid the Republicans will retaliate. They’ve been acting out of fear – or not acting out of fear – for too long. If the Republicans change the rules, Democrats should tell voters exactly what it is: more cheating, from a party of cheaters that keeps rigging the rules for itself and its rich donors.
Some Democratic senators come from states with large conservative populations. They're not likely to win over very many of those voters with equivocation or evasion. But they could win some of them by displaying strength of character and a determination to fight for working Americans.
Opposing Gorsuch is the right political move. More importantly, it's the right thing to do.