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Law & the Courts

Gorsuch Opponents Fall Back on the Last Refuge of Scoundrels

Democrats and liberals casting about for a justification to filibuster Neil Gorsuch’s nomination to the Supreme Court have had a hard time of it. Lacking any basis to criticize Judge Gorsuch himself, they need some theory of why the Senate should not confirm a highly qualified nominee, made by a freshly elected president, and supported by a majority of the Senate. They are now on their third argument, and it’s no better than the first two.

First up was the argument that the seat was “stolen” from Merrick Garland. But as I detailed at length here, that ignores the relevant history: Supreme Court seats have been held open by the Senate for the new president to fill on seven prior occasions, and of the nine prior times that a president has sent a nominee to a Senate controlled by the opposite party in a presidential election year, five were left open for the next president, three were confirmed only after the election in favor of the party that won the election, and just one (Melville Fuller in 1888) was confirmed. (I dealt further with specific complaints about Garland not getting a hearing, and the effort to use Anthony Kennedy as a parallel, here).

Next up was Chuck Schumer’s claim that the Senate traditionally requires 60 votes for a nominee to get confirmed. As I detailed here, this is simply false, as six prior nominees have been confirmed with less than 60% support in the Senate, including two members of the current Court – and the only nomination stopped by a minority of the Senate was a bipartisan filibuster of an election-year nominee whose ethical problems resulted in his resignation from the bench a few months later.

Having failed laughably at both of these justifications, Democrats have chosen as their closing argument a frontal assault on the legitimacy of the 2016 election. Harvard Law professor Laurence Tribe gives a flavor of the mood of this stuff:

The specific argument being made is that Trump should not have the power to fill a Supreme Court vacancy until the FBI concludes its investigation of Russian interference in the election:

This is nonsense, and dangerous nonsense at that.

First, as Andrew McCarthy detailed in a must-read piece over the weekend, the Democrats are now doing exactly the thing they accused Trump of doing back when they thought they would win the election: constructing a theory of a “rigged election” with most of the same elements that Trump was talking about. They have become exactly what they claimed was bad and dangerous – and, as McCarthy also notes, they are doing so almost entirely on the basis of information the voters already knew at the time of the election. The Democrats’ repeated use of the deliberately deceptive phrase “hacked the election” has already convinced a majority of their voter base, with no evidence at all, of the outlandish conspiracy theory that Russia tampered with the vote tabulations. I warned on Election Day that Democrats were not preparing their voters to accept the possibility that a Trump victory was a possible, democratically-legitimate outcome, and filibustering Gorsuch on this basis is surrendering to their angriest and most paranoid elements. Doing so on the theory that Trump is a usurper who has seized power illegitimately is a poisonous argument, but do they really believe it? If they did, they’d expel Joe Manchin and Heidi Heitkamp from their own party, since both have said that they will vote to confirm Gorsuch.

Second, what exactly do Democrats say was done to render the election illegitimate? They offer no evidence, nor even a theory, of collusion by any particular person in the Trump campaign with any particular Russian activity. And what activities are they talking about? As David French has neatly summarized the Russians’ efforts:

They sowed confusion and chaos, and there’s strong evidence (according to multiple intelligence agencies) that they ultimately sought to help Donald Trump beat Hillary Clinton. Their most infamous move was the theft of e-mails from the Democratic National Committee, which were likely passed to WikiLeaks before becoming the basis of a slow drip of damaging information about Clinton and the Democratic party released into the news cycle.

At the same time, Russia was allegedly using “trolls” and “bots” to impact the news cycle by creating artificial “surges” of commentary online. They also used propaganda outlets such as RT to try to affect the national debate, and intentionally tried to plant certain ideas and themes into the American electorate’s consciousness, including the notion that the election was “rigged” against Trump (a theme Trump himself picked up).

In other words: the release of accurate and modestly damaging information only about one side, and what amounts to the Twitter equivalent of a whispering campaign (which some of us were complaining about publicly as far back as mid-2015, as Putin’s Twitter troll army was suddenly converting accounts into pro-Trump accounts).

Unfair? Sure. Worthy of criticizing Trump and his team for their coziness with a regime that did this, and – in Trump’s case – for publicly egging it on? Absolutely. But if we are starting down the road of delegitimizing anyone elected with the help of media unfairness and whispering campaigns, there’s a long list of elections we should be undoing (remember the 2012 Twitter disinformation campaign to spread the rumor that Mitt Romney would ban tampons? Or in 2004, when media organizations refused to go after John Kerry’s sealed divorce records but at the same time used sealed divorce records to take out the Democratic and Republican Senate frontrunners in Illinois to clear the field for an unknown State Senator named Barack Obama?).

Colluding with foreign powers for partisan advantage at the presidential level is blameworthy – but from the beginning of the Republic, we have had peaceful transitions of power even when that was the backdrop of an election. Thomas Jefferson, as Vice President, actively undermined President John Adams’ foreign policy – as the U.S. engaged in the “Quasi-War” with France – by negotiating behind Adams’ back with the French. (Jefferson also secretly penned a 1798 Kentucky resolution asserting state power to nullify federal laws, a step that would produce ghastly fruit in subsequent decades.) Yet, today we justly celebrate the 1800 election that swept Jefferson to power over the incumbent Adams as a milestone of democracy, and a huge swath of America today consists of territory President Jefferson subsequently bought in a deal negotiated with…France.

The Senate exists as a check on misbehaving presidents, but that check in the case of judicial nominations is a check against the appointment of unfit characters – not appointment of distinguished people by unfit characters chosen by the voters. Which is why it is highly relevant that Gorsuch himself is a figure of spotless integrity supported enthusiastically by a majority of the Senate and, for that matter, by the Vice President and a majority of the House.

Third, what is the Democrats’ endgame here? As I have explained previously, there is no criminal investigation of Trump or his team (at least, none we know of); there is, rather, an FBI counterintelligence investigation of Russian meddling, which includes looking at who and what in the Trump camp might have been involved in that. Maybe that, or the Senate or House investigations, tell us things we don’t know now, and maybe they don’t. But because the FBI’s investigation targets Russia, its existence is not proof of anything against Trump, and it could continue for years even if the FBI were to swiftly determine that there was nothing in the Trump campaign to investigate. This is therefore an effort to hand off the Senate’s job to a black box for the sole purpose of long-term delay with no public accountability at the end. What it effectively means is that a single law enforcement agency would be given veto power over the composition of the nation’s highest court – a prospect that should chill the bones of anyone who takes the rule of law and separation of powers seriously.

And to what end? Even if the Democrats’ dreams come true and evidence (unknown now) emerges that results in the impeachment of Trump, the new president would be Mike Pence, who would continue to support the Gorsuch nomination. Even if Democrats could engineer the impeachment of Pence before a new Vice President could be nominated, the new president would – as per federal law – be Speaker of the House Paul Ryan, who would continue to support the Gorsuch nomination. Even if the Democrats could then engineer the impeachment of President Ryan before a new Vice President could be nominated and before a new Speaker of the House was elected, the new president would be Senate President pro tempore Orrin Hatch, who would continue to support the Gorsuch nomination. After Hatch, the line of succession goes to Secretary of State Rex Tillerson, then Treasury Secretary Steve Mnuchin, then Defense Secretary James Mattis, then Attorney General Jeff Sessions, then Interior Secretary Ryan Zinke, then Commerce Secretary Wilbur Ross, then Health and Human Services Secretary Tom Price, then Housing and Urban Development Secretary Ben Carson, then Energy Secretary Rick Perry, then Education Secretary Betsy DeVos, then Veterans Affairs Secretary David Shulkin, then Homeland Security Secretary John Kelly. You’d have to get to Shulkin (the lone holdover from the prior Administration) before you have someone who might not be certain to stick with Gorsuch. There’s simply no endgame here under which a Democrat makes this appointment earlier than 2021.

Rage, conspiracy theories, fake history and fantasy deus ex machina scenarios are no basis for a Senate caucus to behave. Gorsuch should be confirmed, and the unseriousness of the Democrats trying to stop him should be obvious.


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