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Gorsuch Has Another Good Day In Front Of Senate Judiciary Committee

Neil Gorsuch

Judge Neil Gorsuch’s second day of questioning went about the same as the first, with Democrats trying and mostly failing to get the Judge to fall into one trap or another that could potentially lead to trouble for his nomination. By the end of the day, though, they were left with a nominee who handled their questions deftly and likely made his confirmation inevitable:

WASHINGTON — In his final day of questioning at his Supreme Court confirmation hearings, Judge Neil M. Gorsuch continued to answer with practiced generalities on Wednesday, frustrating Democrats who seemed unable to rattle him or pin him down.

“You have been very much able to avoid any specificity like no one I have seen before,” said Senator Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee. “And maybe that’s a virtue, I don’t know. But for us on this side, knowing where you stand on major questions of the day is really important to a vote.”

Senator Richard J. Durbin, Democrat of Illinois, said he was searching to find “a beating heart and an independent streak” behind Judge Gorsuch’s testimony.

After trying over a span of 20 hours over two days, Democrats were not able to move Judge Gorsuch off script. Instead, interest in the hearing seemed to wane, and many in the Capitol came to view a confirmation as inevitable.

Judge Gorsuch managed to endure as much by what he did not say as by what he did.

Most Supreme Court nominees are fairly reticent, but Democrats said Judge Gorsuch outdid the last two Republican appointees, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. They gave their views on seminal Supreme Court decisions, said Senator Patrick Leahy, Democrat of Vermont.

“We’ve had justices nominated by Republican presidents who have been willing to discuss past precedent,” Mr. Leahy said. “I was just kind of hoping you would be as transparent as these prior nominees were.”

The Supreme Court gave Senate Democrats a small gift on Wednesday, issuing a unanimous decision in a case on students with disabilities that rejected the approach Judge Gorsuch had taken in a different case.

The relationship between the two decisions was indirect, and Judge Gorsuch said he had merely followed precedent. But Democrats welcomed the opportunity to elicit answers from Judge Gorsuch about a specific Supreme Court decision, and they returned to the topic repeatedly.

At other points, senators probed Judge Gorsuch’s general judicial philosophy, notably his commitment to originalism, which tries to interpret the Constitution consistently with the understanding of those who drafted and adopted it.

“It’s selective originalism,” Senator Amy Klobuchar, Democrat of Minnesota, said of the nominee’s approach, accusing him of relying on “nonoriginalist judges to get to the outcome” in some preferred cases.

In a speech last year, Judge Gorsuch said judges should “apply the law as it is, focusing backward, not forward, and looking to text, structure and history to decide what a reasonable reader at the time of the events in question would have understood the law to be — not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”

Ms. Feinstein asked where that approach left women and gays given the understanding of the 14th Amendment’s equal protection clause when it was ratified in 1868. Judge Gorsuch responded that he would respect precedents providing for constitutional protections for those and other groups. He later said he would do so even if the precedents had not themselves used an originalist approach to interpreting the Constitution.

Judge Gorsuch added that the intentions of those who adopted the amendment were irrelevant.

“It matters not a whit that some of the drafters of the 14th Amendment were racists,” he said. “Because they were. Or sexists, because they were. The law they drafted promises equal protection of the laws to all persons. That’s what they wrote.”

“No one is looking to return us to horse and buggy days,” he said. Later, he added, “Backward doesn’t mean backwards.”

Even attempts to saddle Judge Gorsuch with President Trump’s baggage, including the president’s attacks on the judiciary, yielded little. Senator Ted Cruz, Republican of Texas, suggested that his Democratic colleagues were being hypocritical, citing their own criticisms of Judge Gorsuch.

“It’s a little rich for them to be maligning a sitting federal judge,” Mr. Cruz said, “and at the same time giving speeches about how unacceptable it is for anyone to criticize a federal judge.”

The closest Judge Gorsuch came to embracing Mr. Trump was perhaps the inadvertent deployment of a curious adverb — “bigly” — often associated with the president. (Mr. Trump has said he is merely saying “big league.”)

“I just won five bucks,” Senator Ben Sasse, Republican of Nebraska, told the judge.

As with Tuesday’s hearing, yesterday’s shorter rounds of questioning followed the same pattern we’ve become used to in confirmation hearings going back some thirty years now, with Republicans tossing the Judge mostly softballs at the Judge or using their time to mostly make speeches for the camera while Democrats sought to pin Gorsuch down on specific issues and cases. As he had on Tuesday, Gorsuch responded to nearly every request for an opinion on specific issues or cases by pointing to ethical rules that prevent him from commenting in advance on issues or cases that he is likely to face as a Justice, or as a Judge on the Tenth Circuit in the event that he is not confirmed. Democrats also tried, and mostly failed, to use items that Gorsuch had written for publications such as National Review before he became a Judge, to which Gorsuch responded that at the time he wrote those pieces he was writing as an advocate, a different role than the one he took on when he became a Judge. Obviously, whether one believes him or not largely depends on which side of the political aisle one comes down on, but the important point out of all of this is that it was clear at the end of two days of questioning that there really isn’t anything substantial that Senate Democrats can pin on Gorsuch to make a credible argument that he should not be confirmed. Because of this, it does appear that his confirmation is just a matter of time now.

With that in mind, Politico notes that some Senate Democrats are already looking to strike a deal with their Republican colleagues that would allow Gorsuch’s nomination to go through relatively unscathed in exchange for a promise regarding future nominations:

A group of Senate Democrats is beginning to explore trying to extract concessions from Republicans in return for allowing Supreme Court nominee Neil Gorsuch to be confirmed, according to multiple sources familiar with the matter.

The lawmakers worry that Gorsuch could be confirmed whether Democrats try to block him or not — and Democrats would be left with nothing to show for it. That would be a bitter pill after the GOP blocked Merrick Garland for nearly a year.

The deal Democrats would be most likely to pursue, the sources said, would be to allow confirmation of Gorsuch in exchange for a commitment from Republicans not to kill the filibuster for a subsequent vacancy during President Donald Trump’s term. The next high court opening could alter the balance of the court, and some Democrats privately argue that fight will be far more consequential than the current one.

If Democrats move ahead with the plan — it’s still in the early discussion phase — it would require buy-in from some Republicans, but not necessarily Majority Leader Mitch McConnell (R-Ky.) or his top deputies. At least three rank-and-file GOP members would have to pledge not to vote to unilaterally change the Senate rules through a majority-only vote later in Trump’s term — the so-called nuclear option.

Cobbling together a group of senators from opposing parties to take such a stand would be difficult, given the long-running partisan war over confirming judges and pressure from the left to deny Gorsuch confirmation. But some Democrats are worried enough about the Senate losing its unique minority rights that they’ve begun kicking the tires on the potential for a new bipartisan “gang.”

The current talks are limited to about a half-dozen Democratic lawmakers. They haven’t made an offer to Republicans yet, and Democratic leaders wouldn’t support one.

Democrats familiar with the effort requested anonymity to discuss a sensitive matter that divides the caucus. Some liberals are aiming to block Gorsuch, while others are worried about the electoral prospects for 10 senators up for reelection next year in states won by Trump if they’re seen as obstructing the president’s court pick.

Any move to save the filibuster would be reminiscent of the “Gang of 14,” a group that included Democrats who agreed to confirm some of President George W. Bush’s stalled judicial nominees as Republicans pledged not to support a rules change. Just three members of that 2005 collection are still in the Senate.

“It’s a really tough situation, and they’re going to have to find their way through it because that 60-vote threshold is important for the Supreme Court,” said former Sen. Mary Landrieu (D-La.), a member of the Gang of 14.

No Democrats have announced their support for Gorsuch yet. Under current Senate rules, McConnell will need at least eight Democratic votes. In the minds of some senators, that gives Democrats some leverage over McConnell — though the GOP leader could move to get rid of the 60-vote threshold if Democrats obstruct Gorsuch.

“We don’t need to be taking a deal,” said a senior Republican aide.

Some Democrats believe McConnell is loath to change Senate rules on a majority vote. Doing so would allow Democrats to more easily confirm liberal judges the next time the party wins the White House and Senate. It’s also not clear McConnell could get 50 of his 52 members to agree to eradicate the filibuster for Supreme Court nominees, a step that would move the Senate even further toward a majority-rule, House of Representatives-style body.

Other Democrats are apparently talking about other ideas:

In addition to talk of getting a GOP commitment on the next court vacancy, two other, less realistic options are also being discussed.

One would be an agreement to confirm Gorsuch in exchange for moving all judicial nominees back to the 60-vote requirement. Republicans are unlikely to agree, given that they are in the majority and have more than 100 lower-level vacancies to fill.

Another ambitious possibility: Some Democrats want to confirm Gorsuch only with an agreement that another justice retire and is replaced with Garland. The idea has almost no chance of success. But it’s being pushed by Sen. Tom Udall (D-N.M.), who said that there’s too much “distrust” in the Senate to believe Republicans are willing to make a deal on a future vacancy, so they must make a deal now on Garland.

“I’m not there,” Udall said of seeking a commitment from Republicans not to change the rules. “I just hope someone does something.”

Sen. Tom Carper of Delaware has warmed to Udall’s position. He’s viewed as one of the handful of Democrats who could support Gorsuch, but he has not even met with the nominee.

“It would be fair to say,” Carper said, “I’m interested in getting justice for Merrick Garland.”

It’s unclear at this point how many Democrats might be willing to go along with this deal, or how many Democratic Senators might be willing to vote for cloture on Gorsuch’s nomination even if they ultimately end up voting against him in a floor vote. It’s also unclear if any Senate Republicans would be willing to agree to an idea that would bind their votes regarding how to proceed with a future Court nominee. On some level, of course, the idea does make sense for Senate Democrats. If they push too hard on a filibuster with Gorsuch, who isn’t going to actually change the ideological balance of the Court significantly if and when he is confirmed, they risk the GOP following the lead of Harry Reid and using the so-called ‘nuclear option’ to repeal the filibuster for Supreme Court nominees just as it has been for Cabinet members, Ambassadors, and other Executive Branch employees. This would mean that Democrats would be essentially powerless to stop a future Supreme Court nomination that could be monumentally consequential in the event that we see a vacancy due to the retirement of a Justice such as Stephen Breyer, Anthony Kennedy, or Ruth Bader Ginsburg, or a vacancy on the Court for some involuntary reason such as death or disability. Whether Republicans will agree is, of course, another question.

As for the other ideas reportedly being considered by other Democrats, these strike me as pie-in-the-sky ideas that aren’t going anywhere. The suggestion that Republicans are going to agree to undo what Harry Reid did in November 2013 is silly at this point. There is no good reason for them to agree to this kind of a rules change, which obviously benefits them now that they control both the Senate and the White House. As for the idea that Senator Udall has to put both Gorsuch and Garland on the Supreme Court, it strikes me that he may be taking a certain episode of The West Wing way too seriously. This isn’t Hollywood Senator, and things simply don’t work that way.

The Gorsuch hearings continue today but they will largely consist of the Senators hearing from panels of witnesses for and against Gorsuch. The pro-Gorsuch panels will apparently be made up of former law clerks and other colleagues and perhaps a handful of retired Judges from the Tenth Circuit or other Courts of Appeal who have worked side by side with Gorsuch on cases and are in favor of his nomination. The anti-Gorsuch panels will most likely be made up of people from various advocacy groups who are on record as opposing his nomination. After that, the committee’s public work will largely be done and we may not hear much more from them until late next week at the earliest when they will likely vote to send the nomination to the Senate floor on what will likely be party lines. From there, it’s not clear what will happen. In theory, the Senate should be able to get a floor vote in on the nomination before the Easter break. If that happens and Gorsuch is confirmed, he’ll be on the bench quickly enough to participate in the final round of oral argument in mid-April. Otherwise, the vote will have to wait until after the break and Gorsuch won’t take the bench in time to participate in any of the cases being heard this term unless the Justices take the somewhat extraordinary step of delaying or rescheduling hearings in some or all of the remaining cases so that they have a full compliment of nine Justices on the Court. Either way, it seems fairly clear that Judge Gorsuch will be confirmed and that the Court will begin its term in October with a full complement of Justices.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. teve tory says:

    https://twitter.com/washingtonpost/status/844920570240258049

    Dems are filibustering.

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  2. michael reynolds says:

    Gorsuch will hold a stolen seat. He will never escape the asterisk that will mark him as a usurper. I support the filibuster and hope Democrats spend every minute of it pointing out that he is illegitimate, and the product of pure partisanship, of Republican dishonesty and hypocrisy.

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  3. teve tory says:

    Does the House GOP now rally together and pass the bill, or create so much chaos everything comes apart?

    Or does they go nuclear and make the filibuster breaker 51 votes?

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  4. @teve tory:

    That’s assuming Schumer can keep his caucus united, which is far from certain.

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  5. @teve tory:

    Are you referring to the health care reform bill vote today in the House?

    Umm, there is no filibuster in the House of Representatives.

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  6. teve tory says:

    Duh. But if you piss the GOP off royally they could unite and pass then bill when otherwise they might not’ve.

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  7. Ben Wolf says:

    @michael reynolds: Yes, confirming Gorsuch would legitimize the Republicans’ extra-constitutional tactics in refusing to hear an Obama nominee. Not to mention that Gorsuch is a regresssive tool of the Oligarch-class and his rulings will get more people dead.

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  8. teve tory says:

    And the gop senate might just say fuck it and end the filibuster.

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  9. Ben Wolf says:

    @Doug Mataconis: I’d say it’s near-impossible. Democrats are neither as steel-spined as Republicans nor as ideologically united.

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  10. @Ben Wolf:

    Once again, there is nothing in the Constitution that forbids what the GOP did in relation to the Garland nomination. You may not like it, I may not like it, but it was perfectly within their legislative discretion. They took a political gamble, a big one at the time since it seemed very likely at the time that Clinton would win the election, and they won.

    That fight is over. Garland is not going to be on the Court. It’s time to move on. It may be distasteful but that’s how politics works. Or, as Harry Truman put it, if you can’t stand the heat get out of the kitchen.

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  11. An Interested Party says:

    Or, as Harry Truman put it, if you can’t stand the heat get out of the kitchen.

    It doesn’t require leaving the kitchen to pour too much salt into the soup or spilling dishwater all over the floor…since we’re using clichés, what’s good for the goose is good for the gander…gumming up the works didn’t hurt Republicans so Democrats should return the favor…

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  12. gVOR08 says:

    @Doug Mataconis:
    And of course they’re Republicans, so no higher standard should be applied to them than the minimum the law will enforce.

    I expect Gorsuch will be pretty routinely confirmed. He’s a standard issue product of the Federalist Society, which, as you say, is about as good as it’s going to get with a GOP Prez and GOP Senate. But that also makes him a product of the vast right wing conspiracy. Per WIKI:

    Some notable supporters of the Federalist Society are Charles G. and David H. Koch; the family foundation of Richard Mellon Scaife; and the Mercer family, which gave significantly to Mr. Trump’s presidential campaign and helped start Breitbart News.

    The latter explaining why Trump nominated Gorsuch.

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  13. Ben Wolf says:

    @Doug Mataconis: I didn’t say it was unconstitutional; I said it was extra-constitutional, as in something not anticipated by the framers and not provisioned for in the document. I don’t give a damn about Garland, but I do care about a group of politicians dismantling a tried-and-tested way of doing things for no reason other than personal political benefit. That’s corruption.

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  14. James Pearce says:

    “I just hope someone does something.”

    Hope in one hand, Tom….

    Seems to me we need fewer “hopers” hoping “someone does something” and more “doers” who are that someone who does something.

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  15. Lit3Bolt says:

    @Doug Mataconis:

    Shorter Doug:

    Precedent-breaking partisanship for me, not for thee. The Dems have to play by the rules, while the GOP can make them up.

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  16. Lit3Bolt says:

    Here’s the thing that burns me: the WaPo editorial board, Doug Mataconis, Jay Caruso are all whining that Gorsuch is a perfectly legitimate candidate with an impeccable record. The thing is, we had a perfectly legitimate candidate with an impeccable record a year ago. You may recall his name, it might be a Jeopardy! answer one day.

    So now Chuck Schumer is “hysterical” and “stupid” while Mitch McConnell “played hardball.”

    The double standard is especially obvious and grating. Wrap yourself in the apolitical cloak of the SCOTUS all you want, but Republican behavior a year ago was noted, and the reaction to that is being played out here.

    I wonder if Gorsuch will withdraw himself once the FBI starts indicting Trump Cabinet members? After all, there’s a cloud of illegitimacy that hangs over the White House. The DoJ investigating the WH is a Constitutional Crisis. We should suspend all lifetime appointments until the Republic is on a more stable footing. /snark

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  17. george says:

    I was trying to explain the situation with SCOTUS to some Canadian co-workers, but having a hard time doing so, given that the Canadian Supreme Court seems to be non-political (in fact most people, including most people who are very active politically, can’t name a single member on it, let alone say anything about their politics).

    From what I’ve read, the same is true in the UK, in Germany, in France, and in just about every other developed country. Which makes me wonder how it ended up so political in the United States? The other countries are just as political and partisan, but it hasn’t affect their supreme court (which goes by various names in different places), why is America’s unique in this respect?

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  18. @Lit3Bolt:

    The Democrats can do whatever they want. Of course, so can the Republicans. And Harry Reid has already shown them how to deal with a filibuster that is blocking a nominee they want to confirm.

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  19. @Ben Wolf:

    No, it’s not “corruption,” it’s politics.

    And, as I pointed out more than a year ago — see here, here, and here — it’s far from unprecedented.

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  20. James Pearce says:

    @Lit3Bolt:

    The double standard is especially obvious and grating.

    Yes, it sure is.

    Despite opposition, Republicans will fight for their nominees. Dems, on the other hand, wait until they lose the election to fight for theirs.

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  21. Modulo Myself says:

    @george:

    Brown v Board of Education, Roe v Wade, gay rights. The right-wing turned their ideology into a fetish, so that someone like Anthony Kennedy is a crazed hedonist filled with irresponsible ideas leading to ruin and more ruin. Most people get the joke that the law makes it illegal for both a king and a pauper to sleep beneath the bridge. The right wants to abolish the joke and any type of pragmatism. Oh yeah, and they like locking up poor people and freeing the rich.

    It’s no different than free-market libertarianism. We’re now at the point where politicians giving money to communities to help build things the community likes but which the market won’t pay for is an act designed to subvert the truth.

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  22. LaMont says:

    @Doug Mataconis:

    When you set a precedent like the one the Republicans set by not holding a hearing last year it is impossible to “move on”! It’s called a “precedent” for a reason – you don’t move on from them. This level of politicing is the new normal!

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  23. Modulo Myself says:

    @george:

    Also, progress itself. It’s one thing to believe that abortion is wrong, or that schools in the north should not be desegregated with busing. But the right has hung its hat on the idea that recognizing the need for progress is also a threat. You just can’t look at the world because that will need to anarchy, basically. It’s a real and profound fear of everything. You don’t get that in Europe or in Canada because they, at least at the highest level, have some sort of sense of history and place. England knows it was an empire, for example, even if it is hazy about the consequences a famine or two in India, or the Boer War. But America has never able to progress past its origins. There’s no sense, except for the triumphs, about how things came to be.

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  24. An Interested Party says:

    Dems, on the other hand, wait until they lose the election to fight for theirs.

    I’m curious…what could the Democrats have done to help Garland even get a hearing, much less get an up or down vote…

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  25. Lit3Bolt says:

    @Doug Mataconis:

    Joe Cunningham just had a tweetstorm about Schumer’s hail-mary here.

    1) Force McConnell to nuke filibuster rules.
    2) Pray Ginsberg and Souter don’t croak.
    3) Bet that Trump will be a one-term President.
    4) Bet that Democrats will not get hammered in 2018.
    5) Bet that Democrats will retake Senate in 2020 when the Senate map is much more favorable for them and their electorate.
    6) Finally seat multiple SCOTUS seats with 51 senators.

    I think all that long-play nonsense is intriguing, but ultimately worthless. Ultimately, I think Schumer decided that a filibuster plays well with the Democratic base, and he gets to hang the consequences of the nuclear option on Mitch McConnell’s neck.

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  26. Jack says:

    The dumbest thing the GOP could do is make a deal. Force the Dems to filibuster Gorsuch, and use the “nuclear option” if they do. The GOP already know the Dems would have done this to them if they had taken the Senate and White House and we were looking at Hillary’s nominee to replace Scalia. They know because when they thought victory was a lock they said as much.

    Finally, return to the old filibuster rule that requires the filibustering Senator to actually hold the floor. You’d think Senators would love opportunities to grand stand on issues that are important to voters, especially in this social media driven world.

    BTW, why is Gorsuch the nominee? Because Hillary Lost. Get over it.

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  27. drj says:

    @Lit3Bolt:

    After all, there’s a cloud of illegitimacy that hangs over the White House. The DoJ investigating the WH is a Constitutional Crisis. We should suspend all lifetime appointments until the Republic is on a more stable footing. /snark

    Why the snark?

    Treason, either committed personally or by one’s campaign staff, seems a pretty reasonable disqualifier for making Supreme Court nominations.

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  28. Lit3Bolt says:

    @James Pearce:

    What should the Democrats have done?

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  29. Lit3Bolt says:

    @drj:

    That’s ideally what we should do, but when it comes to SCOTUS nominees, anything goes obviously.

    I was snarking because Doug does not see that as disqualifying. And neither do many otherwise intelligent conservatives who deeply dislike Trump. In this, they’ll let the Russians help them.

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  30. Ben Wolf says:

    @Doug Mataconis: The use of power with which one has been entrusted for personal gain is corruption and factionalism of the sort the Constitution was intended to prevent.

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  31. gVOR08 says:

    @drj: I’m with you. Apply McConnell’s rule. Don’t confirm a justice in what looks to be the last year of the Trump Presidency.

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  32. george says:

    @Modulo Myself:
    @Modulo Myself:

    Interesting, thanks. I suppose some of that is how different conservatives are in America as opposed to most of the rest of the world … in Canada for instance conservatives for the most part are trying to maintain the status quo, whereas in America many seem to be trying to conserve an imaginary time period that ended six decades ago (the mythical 1950’s America).

    In Canada conservative typically means “fiscal conservative, socially indifferent (ie don’t care so long as it doesn’t raise taxes), in America many conservatives argue that fiscal conservatives aren’t true conservatives (ie if you’re not a social conservative you’re not conservative). And I know a lot of conservatives up here, and not a single one doubts evolution (though some conservative research biologists I know argue about whether the current synthesis is adequate or needs to be updated … are there any conservative research biologists in the US at all?)

    So perhaps the question becomes, why are conservatives so different in America than in other parts of the developed world. Its not just religion; most Christians I know in Canada are liberal (or actually Liberal or NDP).

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  33. James Pearce says:

    @An Interested Party:

    I’m curious…what could the Democrats have done to help Garland even get a hearing, much less get an up or down vote…

    Last year, the answer wasn’t so obvious, but now it is.

    Step 1) Unending shameless pressure. Schedule hearings that Republicans must boycott. First Tweet on POTUS’s twitter starts every day with “X days since Garland nominated.” Obama calls a press conference weekly, just to give out the day count.

    Step 2) Tell Hillary to shut up about how homophobic, sexist, racist, and xenophobic Trump is and insist that she talk about what she’s going to do as president.

    Step 3) Remind people, especially people in the rust belt and the south, to actually cast a vote.

    Since we failed to do any of that stuff,

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  34. An Interested Party says:

    BTW, why is Gorsuch the nominee? Because Hillary Lost. Get over it.

    Wow, you’re as disingenuous as Trump…yes, I know, hardly surprising…as for getting over anything, perhaps you could tell your fellow travelers to get over the Bork nomination (from over 25 years ago!) that they trot out whenever they want to air their grievances…at least Bork actually got a vote, unlike Garland…

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  35. @Ben Wolf:

    If the Constitution was intended to prevent what Republicans did, then the Framers would have provided for it. In reality, one of the original proposals for the structure of the Senate’s role in confirming appointments would have placed a time limit on how long the Senate could hold on to a nomination without acting. Specifically, James Madison proposed a plan under which nominees would be automatically confirmed unless a majority of the Senate voted against that nomination within a fixed period of time. That proposal was rejected by the Constitutional Convention.

    Additionally, it is clear from the various transcripts of the proceedings of the 1787 Convention that the delegates ultimately based the method by which Judges and other officers were nominated and confirmed that was in place at the time in Massachusetts. Under that system, the Governor appointed officials and Judges that had to be approved by a majority vote of the legislature (then called the Privy Council). Throughout Massachusettes’ history as a colony, there were numerous examples of the Governor making appointments that the Privy Council refused to act on, thus meaning that the nomination died. The delegates, especially those from Massachusetts would have been aware of that history at the time the Constitution was drafted. Therefore, the fact that there is nothing in the Constitution that *requires* the Senate to act on a nomination indicates that your comment that what happened in the case of Garland was something the Constitution was “intended to prevent” simply is not true.

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  36. @James Pearce:

    Since they were not in the majority, the Democrats had no authority to schedule hearings in the Senate. The most they could have done is stage a hearing-like meeting for the press.

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  37. Gavrilo says:

    So, the Dems are going to filibuster the Gorsuch nomination? That hasn’t happened since the last time a Republican President nominated a Supreme Court justice.

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  38. LaMont says:

    @Lit3Bolt:

    I was snarking because Doug does not see that as disqualifying. And neither do many otherwise intelligent conservatives who deeply dislike Trump. In this, they’ll let the Russians help them.

    BINGO! Everyone to the right of center appears to take comfort in “politics as usual” when “politics as usual” flew out the window the moment Trump won the election. They appear not to understand their own level of complicity in this thing we all agree is a major pile of mess! The $h!t hit the fan and they are walking by pretending it don’t stink!

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  39. Modulo Myself says:

    @george:

    There’s a degree of apocalyptic thinking in America that just does not go away. Race riots, the will to use nukes to save the world from communism, or the actual rapture–it’s all there. When you view things apocalyptically it’s hard to be pragmatic. And when pragmatism becomes too difficult you become apocalyptic. Once you become apocalyptic everyone is against you.

    There’s also a degree of literalism here. The French celebrate their revolution but they aren’t (for good reasons) really dying to use Robespierre and Danton’s theories hundreds of years later. There’s something crazy about America constantly looking back to its Founders–men who both owned slaves and never flipped a light switch–as ultimate sources of wisdom. It’s like Biblical literalism–if Jesus is the truth to you as revealed in the Gospels then you have to follow something from Deuteronomy. Or else.

    What’s weird is that Catholicism, which has evolved a perfectly-metaphoric universe of sin and redemption and limbo, has become, in the hands of American conservatives, as malevolent as the worst forms of Protestantism.

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  40. al-Ameda says:

    Even attempts to saddle Judge Gorsuch with President Trump’s baggage, including the president’s attacks on the judiciary, yielded little. Senator Ted Cruz, Republican of Texas, suggested that his Democratic colleagues were being hypocritical, citing their own criticisms of Judge Gorsuch.

    “It’s a little rich for them to be maligning a sitting federal judge,” Mr. Cruz said, “and at the same time giving speeches about how unacceptable it is for anyone to criticize a federal judge.”

    For someone as intelligent – brilliant – as Ted Cruz is purported to be, he certainly is lame when it comes to pointing out an example of Democrats’ ‘hypocrisy’ concerning attacks on the judiciary.

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  41. LaMont says:

    @James Pearce:

    Step 2) Tell Hillary to shut up about how homophobic, sexist, racist, and xenophobic Trump is and insist that she talk about what she’s going to do as president.

    Whole heartedly disagree here. Hillary’s campaign speeches came in two parts. One part blasted Trump. The other part consisted of Hillary pointing out policy differences and things she wanted to do as President. The problem was the media would only cover the part of her speeches that focused on Trump during the everyday new cycle. Every news channel, cable or local, left or right, were guilty of it! The only other thing that ruled the typical news day concerning Hillary was the email “scandal”! It did not matter that Hillary had stances on various domestic and foreign matters important to this country. It had no chance at breaking the news cycle!

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  42. dmichael says:

    @James Pearce: I have stayed on the sidelines during your increasingly unilluminating criticisms of the Democrats. This one takes the prize. Members of the minority party CAN’T call any hearings. That is done by the chair of the relevant committee who is a member of the majority. Dems have been in the minority in the House since 2013 and Senate since 2015. (I see that Doug has posted a similar response to you).

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  43. Lit3Bolt says:

    @Modulo Myself:

    It’s like Biblical literalism

    Exactly! It’s a naked appeal to authority to force unpopular outcomes on the majority. Despite high minded rhetoric, Americans still remain Puritans.

    Equally dangerous in the minds of American apocalypse worshipers is the False Apocalypse. Everyone has to submit and obey and tithe or face God’s Wrath and be cast out of the tribe, but they’re also afraid of someone UNWORTHY (being black, female, or gay, or HORROR! ALL THREE) sitting in judgment of them.

    Thus the Tribe must be protected at all costs.

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  44. James Pearce says:

    @Doug Mataconis:

    The most they could have done is stage a hearing-like meeting for the press.

    Sure, but staging a hearing-like meeting for the press (and a public who can hardly be counted on to know the difference) is exactly what a shameless opposition should do.

    And hey, I’m not saying that any of this would have worked. But Garland’s nomination didn’t fail because Dems were in the minority. Garland’s nomination failed because Dems won’t fight.

    (Which is also why they’re in the minority.)

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  45. al-Ameda says:

    @James Pearce:

    Garland’s nomination failed because Dems won’t fight.

    As I see it, the Garland nomination failed (1) because of pure numbers – McConnell had the numbers, Democrats did not, and (2) please see number (1).

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  46. Lit3Bolt says:

    @James Pearce:

    Thank God the Democrats have your tautological reasoning to help them.

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  47. Gavrilo says:

    @LaMont:

    True, Hillary couldn’t control the new cycle. But, she controlled her own campaign advertising. And, she ran the most policy-free campaign since 2000.

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  48. Gavrilo says:

    @James Pearce:

    Except for most of last year, Democrats weren’t all that interested in confirming Garland. They were convinced Hillary was going to win and were actually excited at the prospect of her nominating someone younger and more liberal.

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  49. James Pearce says:

    @al-Ameda:

    As I see it, the Garland nomination failed (1) because of pure numbers

    Garland isn’t the first nominee to face a Senate controlled by the opposition. He just happened to be nominated in a time when we had a Senate full of very bold Republicans and very stupid Democrats.

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  50. @James Pearce:

    Perhaps, although it’s worth noting that polling last year showed that while the public didn’t approve of what the GOP was doing they also didn’t much care about it either.

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  51. James Pearce says:

    @Gavrilo:

    Except for most of last year, Democrats weren’t all that interested in confirming Garland.

    Pretty much. Not sure why saying that out loud deserves down votes though.

    @Doug Mataconis:

    while the public didn’t approve of what the GOP was doing they also didn’t much care about it either.

    Yeah, it seems like “both sides” were content to let the next president decide.

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  52. Ben Wolf says:

    @Doug Mataconis: You’re essentially arguing the framers were clairvoyant and the Constitution must reflect precisely what they wished to see, therefore they approved of corruption. That’s an irrational claim.

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  53. An Interested Party says:

    He just happened to be nominated in a time when we had a Senate full of…very stupid Democrats.

    Indeed…Democrats should have just used their magical powers to give themselves a majority and then they could have easily held a winning vote for him…

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  54. James Pearce says:

    @An Interested Party:

    Democrats should have just used their magical powers to give themselves a majority

    Kinda sad the only options you see before you are 1) capitulation and 2) magic.

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  55. Ratufa says:

    @LaMont:

    Whole heartedly disagree here. Hillary’s campaign speeches came in two parts. One part blasted Trump. The other part consisted of Hillary pointing out policy differences and things she wanted to do as President.

    I live in rust-belt state that Hillary lost, and watched all of the the debates and saw a lot of her campaign commercials. Except for very few exceptions, her commercials were about Trump’s faults, not about her policies, or how she would improve people’s lives. On the other hand, Trump’s commercials mostly stuck to his “Make American Great Again” theme. In the debates, Hillary cam across as having a policy on her web site for everything, but she never made it clear what specific policies were important to her.

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  56. Just 'nutha ig'nint cracker says:

    @Lit3Bolt: They should have gotten out their vote whether Hillary campaigned well or not! Because a 100,000 people (give or take) stayed at home, Trump got elected.

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  57. Ratufa says:

    @Ben Wolf:

    The use of power with which one has been entrusted for personal gain is corruption and factionalism of the sort the Constitution was intended to prevent.

    The Republicans played political hardball, and that resulted in outcome that was closer to the political preferences of the majority of their mostly conservative voters. The “personal gain” they received was an increased chance that those voters would support them, and a court appointee that would be more inclined to support their political interests. These are the same personal gains that both liberals and conservatives get from successfully fighting for or against particular SCOTUS nominees. Why do you consider that corruption?

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  58. Just 'nutha ig'nint cracker says:

    @george: It’s possible that the difference is that Libertarian philosophy may be uniquely American. While I was living in Korea, as I talked about American politics (as I see them of course) with Koreans, they weren’t able to understand why conservatives would be against subsidizing health insurance (they didn’t think that was a smart approach, BTW, they’re more in favor of single payer), why the GOP wants to dismantle the safety net, why we spend so much money on defense but so little on our own citizens. And they really don’t get Ayn Rand. They would tell me “you can’t take the kind of approach to society that she does, you have to provide for the people who don’t have enough or you’ll destroy your society.”

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  59. An Interested Party says:

    Kinda sad the only options you see before you are 1) capitulation and 2) magic.

    It’s a lot sadder that you fail to realize that Garland wasn’t going anywhere as long as Republicans controlled the Senate…

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  60. Bob The Arqubusier says:

    I’m trying to see the theory behind the arguments here, and I’m coming up with nothing beyond “infantile temper tantrum.”

    Let’s suppose that Schumer goes ahead and filibusters Gorsuch, and Trump pulls his nomination. Congrats, you won. What’s next? Do you think that you’ll actually find Trump’s second choice more to your liking? Or, given Trump’s temperament, do you think that you’ll find that next nominee far less palatable than Gorsuch?

    So you now have a nominee far less palatable than Gorsuch. You’ve gotten your payback for Garland, so now you’ve used up your chit for that one. Do you let this nominee you like even less than Gorsuch get on the bench for the rest of his or her life, or do you filibuster this one too?

    At that point, it’s now clear to everyone that Chuck Grassley is right — “If you’d filibuster Judge Gorsuch, it’s obvious you’d filibuster anybody.” And then Mitch McConnell finally remembers that the Republicans are the majority and the Democrats are the minority, and abolishes the filibuster.

    So there you are. You stopped Gorsuch, but in return you got worse-than-Gorsuch for a couple of decades and lost the filibuster to boot.

    Plus you’ve given Trump and the Republicans tons of clips for ads in 2018 and 2020.

    So, just what is the plan here, anyway?

    Or, as I suspect, there is no plan beyond this infantile temper tantrum?

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  61. James Pearce says:

    @An Interested Party:

    It’s a lot sadder that you fail to realize that Garland wasn’t going anywhere as long as Republicans controlled the Senate…

    Perhaps the failure to realize this can be forgiven considering I’m not a Defeatocrat. It’s true, Republicans controlled the Senate…by a couple of seats.

    To my eyes, that obstacle is not insurmountable.

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  62. Bob The Arqubusier says:

    @James Pearce: Perhaps the failure to realize this can be forgiven considering I’m not a Defeatocrat. It’s true, Republicans controlled the Senate…by a couple of seats.

    To my eyes, that obstacle is not insurmountable.

    We’d be fascinated to hear your plan to surmount that before January 2019.

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  63. Lit3Bolt says:

    @Bob The Arqubusier:

    Funny how you and a lot of other conservatives didn’t get this worked up about Merrick Garland….

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  64. LaMont says:

    @James Pearce:

    It’s true, Republicans controlled the Senate…by a couple of seats.

    To my eyes, that obstacle is not insurmountable.

    Well then it’s apparent that you’d prefer not to deal in reality! What evidence in the past seven years before that did the Republicans give you to make you believe that even one Republican would defect or compromise in any way?

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  65. LaMont says:

    @Ratufa:

    Hillary cam across as having a policy on her web site for everything, but she never made it clear what specific policies were important to her.

    Of course it’s impossible to make it clear if the media doesn’t bother to cover it. This is really no different than any other person that ran for the office in the past. The media typically don’t care about discussing policies while crying wolf that the policies aren’t being discussed! I strongly disagree that her campaign speeches were light on policies and things she stood for. And the fact that she had a stance on many things only displayed the brevity of her preparedness – being in the political arena for over 25 years! No one cared!

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  66. Jeremy says:

    @george: Frankly, it’s because they’re less conservative and more just right-wing populist. There are conservatives as you describe, but they are very rare because the populism has taken over everything.

    (Also, I am not a conservative. Just FYI.)

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  67. Ratufa says:

    @LaMont:

    Of course it’s impossible to make it clear if the media doesn’t bother to

    That is why I only talked about her campaign ads and what she said during the debates. Presumably, her and her campaign staff had control over those things. During the campaign itself, some of her advisers (e.g. Bill) weren’t happy with her messaging. This has been discussed in various other OTB threads.

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  68. James Pearce says:

    @Bob The Arqubusier:

    We’d be fascinated to hear your plan to surmount that before January 2019.

    I don’t have a plan for seating Merrick Garland before January 2019. And you shouldn’t either….

    @LaMont:

    What evidence in the past seven years before that did the Republicans give you to make you believe that even one Republican would defect or compromise in any way?

    I will agree with the futility of the effort after an attempt is made.

    I mean, I know all about the GOP’s obstructionist agenda. If you don’t have the strength to knock down the whole wall, you work on a couple of the weakest bricks.

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  69. Mr. Bluster says:

    Is there a source for a written transcript of these hearings?

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  70. george says:

    @Just ‘nutha ig’nint cracker:

    It’s possible that the difference is that Libertarian philosophy may be uniquely American.

    That’s probably true, but I don’t see that it has much to do with conservatives in the United States; in fact, if you surf conservative web sites you’ll note that they’re as strongly against Libertarians as progressives are – the (American) conservative argument is that if you’re not socially conservative you’re not conservative (ie they say that its inconsistent both morally and philosophically to be fiscally conservative and socially liberal … interestingly enough American progressives agree with that). Meanwhile, in the rest of the developed world almost every conservative is fiscally conservative and socially either liberal or neutral.

    I don’t know of a single country other than America which thinks social conservatism is automatically linked with fiscal conservatism. Even in Canada’s previous Prime Minister, Harper, who was known to be religious, made a point of kicking out anyone in his party who wanted to bring up banning abortion, or bringing back capital punishment, or allowing handguns (as opposed to rifles and shotguns which are considered rural tools), or getting rid of national healthcare, or increasing military spending noticeably … well, you get the idea, Harper governed well to the left of Obama, and mainly because conservatism in Canada is seen as fiscal rather than social.

    Again, the American experience is very unique in that, and Libertarians are a tiny percentage of conservatives (if they’re conservatives at all, something most American conservatives seem to deny).

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  71. george says:

    @Jeremy:

    That’s certainly true, I just wonder why America went that way, when no one else did. I suspect Modulo’s point about apocalyptic thinking is on the right path.

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  72. Bob The Arqubusier says:

    @Lit3Bolt: So, you would prefer to call people hypocrites. Because that works so well.

    I’ll put you down under the “infantile temper tantrum” vote, then.

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