If you, like other Americans, recently received your $1,400 stimulus check, you likely appreciate the passage of the $1.9 trillion relief bill and its signing into law by President Joe Biden.
The coronavirus aid package, alongside offering direct payments of $1,400 to most Americans, also extended $300 unemployment insurance boosts until September 6, expanded the child tax credit for another year, and allocated funds to COVID-19 vaccinations, rent and utilities assistance, and relief at the local, state, and tribal level.
The path to this legislation clearing both Congress and the White House, however, was a rocky one and not without controversy. For one, no House Republican voted in favor of this bill. Not one. Heck, more Democrats voted against the stimulus/relief package (two—Oregon’s Kurt Schrader and Maine’s Jared Golden) than Republicans voted for it. Owing to a majority in the House, this never really endangered the bill’s passage, but the final tally reinforces the notion that the bill didn’t have broad bipartisan support—at least as far as Congress is concerned.
In addition, other potential relief measures which might’ve been attached to this legislation were defeated, evidencing, in the eyes of many, the genuine disdain certain members of Congress have for their constituents. Kyrsten Sinema, in particular, drew the ire of Internet onlookers everywhere when footage of her exaggerated thumbs-down floor vote on including a $15 minimum wage in the aid package went viral.
I can’t presume to know what exactly was going through Sen. Sinema’s mind when she was making her cutesy gesture. A few critics suggested the moderate Democrat was trying to get the approval of Senate Minority Leader Mitch McConnell, which is especially egregious in that 1) McConnell didn’t even turn around to watch Sinema’s vote after she initially got his attention, and 2) McConnell is, ahem, a FREAKING REPUBLICAN. Party solidarity isn’t everything, but in this instance, it means a lot.
Generally speaking, then, Sinema’s theatrics were bad optics, a notion unaided by her arriving for the vote well-dressed with a Lululemon bag slung around her shoulder and with a cake for Senate floor staff forced to work through the night on the public reading of the COVID-19 stimulus/relief bill (more on this later). Even if her dessert offering was intended as a show of kindness for beleaguered Senate workers, it was a literal “let them eat cake” moment for her on a national stage.
To make matters worse, Sinema, through spokespeople, tried to deflect criticism of her no-vote on a $15 minimum wage by insisting that it was sexist to point to her thumbs-down in decrying her vote. To be fair, criticism of female politicians is often steeped in sexism. Political figures from Alexandria Ocasio-Cortez to Hillary Clinton have suffered unfairly disproportionate barbs and scrutiny in the media, especially right-wing outlets.
In this instance, though, no one forced Sinema to make a big production out of her vote and it wasn’t as if the other Senate Democrats who helped defeat the resolution on a $15 minimum wage weren’t rightly condemned for voting with Republicans. As far as some might be concerned, she could’ve stood on her head. The direction of the vote was what mattered—and she chose incorrectly. On the heels of stated opposition to doing away with the filibuster—which is seen widely as an impediment to Democrats passing needed legislation by virtue of a simple majority—alongside the likes of fellow Democrat-when-it-suits-them Joe Manchin (who also voted against a $15 minimum wage, by the by), it casts Sinema’s outward profession of caring for working-class Americans in an awfully bad light.
Stunts like Sinema’s only serve to add to the glut of performativity which characterizes the current political landscape. Amid the negotiation of this latest stimulus/relief package through Congress and to President Biden’s desk, GOP senator Ron Johnson took it upon himself to slow down the bill’s passage by forcing Senate clerks to read all 628 pages of the bill, prompting Sen. Sinema to bring her ultimately ill-fated cake to the Senate floor. Rather than permit Americans in need, including his own constituents, to get the relief they deserve, he used his position in the Senate to delay the rolling out of real, tangible benefits.
Is the throwing of red meat to an increasingly calcified right-wing base purely for the sake of political capital not to be condemned in a more full-throated fashion? When does “owning the libs” cross the line? Is there even a line left to cross at this point?
In a similar vein, House Minority Leader Kevin McCarthy recently used his stature amid a deadly pandemic to very productively post a five-minute video of himself reading Dr. Seuss’s Green Eggs and Ham. The clip is an apparent attempt to defend Theodor Seuss Geisel’s works against the “cancel culture” of the left amid Dr. Seuss Enterprises’ move to take six books of his books out of publication for “racist” or otherwise outmoded imagery.
Not only was this decision the company’s and not the result of efforts of some conspiratorial leftist pressure campaign (and, by the by, Green Eggs and Ham isn’t even one of the Seuss works being taken out of publication), this doesn’t materially help Americans across the political spectrum. Besides, I could think of a lot of things more fruitful to do with five minutes of my life than watch a professional windbag like McCarthy read a book written for children. It’s boring on top of being insulting.
Don’t get me wrong—trolling has its appeal. In a media landscape already saturated by performativity and at a time when so any Americans are hurting, however, the above-listed nonsense falls flat, particularly when done as artlessly as the above examples. Only a select few people get to call themselves members of Congress. We need to demand more of them.
What is particularly unnerving in these examples of public spectacle is that they reinforce the idea of politics as theater, as something to be watched and not to be engaged with. Kyrsten Sinema, in the face of mounting financial hardship for scores of Americans, was more concerned about giving an attaboy to Mitch McConnell and bringing cake to Senate staff than improving the lives of millions of Americans, including residents of her own state. Ron Johnson, a serial Trump apologist, forced the reading of a bill basically just to be a dick and under the same conditions of health and economic crisis. Kevin McCarthy, who has been trying to claim he never supported Donald Trump’s attempts to overturn the 2020 election even though he TOTALLY F**KING DID, read a children’s book, ginning up some culture war bullshit in a disingenuous way to deflect from the disaster the Republican Party is, an organization threatening to tear asunder by its association with a pathological narcissist.
The proverbial bar seems like it has forever been lowered by four years of President Trump, but the conduct of these members of Congress is not to be encouraged or tolerated, especially for Sinema. Primary wins for progressives have regrettably been fewer and further between than leftists hungry for real change would like, but the incumbent should nonetheless be challenged here. Is her offense the most egregious in recent memory? Not by a long shot. But that one moment revealed enough such that Sinema’s constituents should have no doubt about where her loyalties lie—and they’re not with giving Americans a livable wage.
In the 24-hour news cycle, moments like these don’t get much time in the limelight—and perhaps that is a blessing as much as a curse. Regardless of whether we are to oust hack politicians like the aforementioned bad actors, it is advantageous to look past an obsession with electoral politics and build power at the community level, getting the buy-in of those who normally eschew politics as well as stunts like making videos about Dr. Seuss books and wagging their tongue at the poor. Simply waiting every two, four, or six years for better results just doesn’t cut it.
If you’re like me, you used to believe or still do believe that “politics should be left to the politicians.” This is the absolute worst thing you can do, frankly speaking. When we become spectators, it only encourages the shenanigans referenced earlier. Americans deserve better than the likes of Kevin McCarthy, Kyrsten Sinema, and Ron Johnson. The path forward starts with us, the people who elected them in the first place.
Though it’s been fairly quiet on the confirmation front lately (President Donald Trump has been repeatedly criticized for his—shall we say—dilatory commitment to filling vacancies in his Cabinet), even ex post facto, it can be educational to see how our U.S. senators voted on the 19 nominees thus confirmed. A particularly valuable resource in this regard is an interactive graphic from The New York Times authored by Wilson Andrews, Times graphics editor, that plots the confirmation vote records of each and every senator, sorted by most “no” votes to least.
On the Republican side, the results are disappointing, if not unsurprising. Of the 52 Republicans with a seat in the Senate, only four have registered at least one “no” vote: Lisa Murkowski (DeVos), John McCain, (Mulvaney), Rand Paul (Pompeo, Coats), and Susan Collins (DeVos, Pruitt). Aside from Andrew Puzder, who withdrew his name for consideration for the role of Secretary of Labor, and Betsy DeVos, Secretary of Education, who required Vice President Mike Pence to break a 50-50 tie and has been the only nominee to receive multiple “no” votes from Republicans, no one else has really been in doubt to pass confirmation proceedings. The only other candidates who have failed to garner even 55 votes are Mick Mulvaney (Office of Management and Budget), Jeff Sessions (Attorney General), Tom Price (Department of Health and Human Services), Scott Pruitt (Environmental Protection Agency), and Steven Mnuchin, the likes of which, either based on their past conduct, their conflicts upon conflicts of interest, or both, haven’t exactly distinguished themselves—well, at least not in the positive sense.
As for the Democrats and independents, the results are decidedly more varied. The top “no” voter in the Senate, tallying 17 of 19 nays, is Kirsten Gillibrand of New York, who is not really regarded as a progressive heroine, but has seemingly moved further left as she has gone along, and certainly more so than in her days in the House. Also high on the list are some of the more popular and well-regarded senators in terms of their principles—Cory Booker, Jeff Merkley, Bernie Sanders, and Elizabeth Warren, all of whom have issued 16 of 19 “no” votes. These senators and others who have voted no roughly two-thirds of the time—13 or more “no” votes, let’s say—comprise a minority even within the group of just Democratic and independent senators. Only 15 of this bloc of 48 senators have voted “no” 13+ times (31.25%), and that clip decreases to a scant 15% within the U.S. Senate at large. On one hand, that more Democrats are willing to break ranks is perhaps encouraging in terms of the desire to not merely rubberstamp or preemptively dismiss nominees along the path to confirmation. On the other hand, if you were looking for a unified front from the Dems, you can go ahead and keep looking, and moreover, the divide in votes may be indicative of a larger ideological divide within the Democratic Party.
Though a minority in its own right, a group of eight Democratic or independent senators has failed to record 10 or more “no” votes in 19 confirmation vote proceedings, with five of them failing to eclipse even six of 19, or a third of votes. These are the lowest of the low, literally speaking, regarding “no” votes:
Joe Manchin III (D-WV)
“No” Votes: 4 (DeVos, Mulvaney, Price, Ross)
Joe Manchin, a professed Democrat, has cast as many “no” votes as Republican Senators who have voted “no” altogether during the confirmation process. As noted, that’s a bar that should be fairly easy to clear—and he hasn’t. The votes for Scott Pruitt and Rex Tillerson don’t come as that much of a surprise for Manchin, hailing from a state that is synonymous with coal, but the “yes” vote for Jeff Sessions is particularly egregious. Some are comparing Joe Manchin, based on his willingness to break from other Dems, to Joe Lieberman, a comparison which is not all that endearing. Though obviously a joke, it’s telling when the official Twitter feed for Full Frontal with Samantha Bee suggests Democrats oppose Manchin in the 2018 primaries with a lump of coal. Brutal, but not wholly undeserved.
Heidi Heitkamp, like Joe Manchin III, suffers the ignominy of voting “yes” on both Pruitt and Tillerson. Also like Manchin, she hails from a state in North Dakota of which fossil fuels make up a significant part of the economy, so not a huge shocker there, but still disappointing. That she would be so principled on nominees like Mick Mulvaney, Jeff Sessions, Tom Price, and Steven Mnuchin makes her positions on Scott Pruitt and Rex Tillerson all the more jarring. Either way, Heitkamp and Manchin are the only two Democrats to vote for both Pruitt and Tillerson, and the former, like the latter, should receive her due censure from progressives within the party.
Angus King of Maine is one of two independents in the Senate, alongside a certain senator from the state of Vermont who gave Hillary Clinton a run for her money regarding the Democratic Party nomination. Like Bernie Sanders, he caucuses with the Democrats. Apparently, though, he doesn’t vote with them nearly as often as his counterpart. Certainly, the “yes” vote for Rex Tillerson is concerning, but his approval for the likes of Ben Carson and Rick Perry is also vaguely disconcerting. Mr. King, you may be independent and may caucus with the Dems, but you are no Bernie Sanders. Not even close.
Joe Donnelly (D-IN)
“No” Votes: 6 (DeVos, Mulvaney, Sessions, Price, Mnuchin, Tillerson; did not vote on Pruitt)
If you believe Joe Donnelly, he is a lawmaker committed to making life better for his fellow Hoosiers, and this includes working across the aisle when necessary. If you approach his statements and his voting record from a more pragmatic or even cynical viewpoint, though, you might say he capitulates to conservatives when he has to. As both a member of the House of Representatives and a U.S. Senator, Donnelly’s record has been marked by his being more moderate on both economic and social issues. While I respect that this likely has caused him stress in being the subject of attacks from both the left and the right, speaking as someone from the far-left, I and other progressive-minded individuals are looking for better than 6-for-19 on these confirmation votes. That would be fine in baseball, but Indiana does not have a major league team, and these matters are more important.
Mark Warner has the exact same voting record on Cabinet position confirmations as the aforementioned independent Angus King. That’s not an endorsement—nor should it be considered as such. Once again, the principled stance on Pruitt alongside a “yes” vote on Tillerson is an odd juxtaposition, and even casting votes in favor of Rick Perry or even Ryan Zinke raises the progressive brow. Warner, it should be noted, is the top Senate Democrat investigating ties between Russia and Trump, particularly in the arena of interference in the 2016 presidential election. That said, being recently spotted having a chat over wine with Rex Tillerson doesn’t exactly inspire confidence for Democratic supporters that his interests and party loyalty are all that pure. Mark Warner, you’re on notice.
Even for those Democratic senators who have cleared the low hurdle of six “no” votes, a few others have yet to garner double digits, putting their judgment in question, or, if nothing else, suggesting they may be too close to center to really inspire enthusiasm among younger members of the party base. The following senators, if not getting an explicit wag of the finger, are nonetheless worthy of a wary eye:
Claire McCaskill (D-MO)
“No” Votes: 7 (DeVos, Mulvaney, Sessions, Pruitt, Mnuchin, Tillerson, Carson; did not vote on Price)
You may have heard Claire McCaskill’s name in the news recently, when she called upon Jeff Sessions to recuse himself from any investigations into Russia and Trump, averring that she personally had never met Russian ambassador Sergey Kislyak—when, in fact, she totally had. She also has recently been making a push to Bernie Sanders supporters in her bid for re-election—you know, despite endorsing Hillary Clinton early in the primaries and criticizing Sanders’ campaign at the time. These stories may say enough about the Democratic senator from Missouri, but her voting record alone on Trump’s Cabinet nominees should prompt criticism from the left.
As far as moderates go, Jon Tester is fairly well regarded among liberals based on a number of his votes in the Senate, as well as policy positions which have evolved and moved further left over time (e.g. same-sex marriage, Don’t-Ask-Don’t-Tell). A bleeding-heart liberal Tester is not, though, with his pro-gun stance, for instance, painting him as more of a “your grandpappy’s” kind of Dem than the “elitist liberals” that are always being decried in right-wing circles. At least on the gun issue, this is perhaps to be expected in a red state like Montana. Still, one might have liked to see more push-back on nominees like Wilbur Ross or even Linda McMahon given his past diatribes against the wealthy. You get a pass this time, Sen. Tester. This time.
Tim Kaine’s presence on this short list means Virginia has two under-10 “no” vote senators to its name, the only such state to earn that distinction given two Democratic/independent senators. Kaine, as you’ll recall, was Hillary Clinton’s pick for vice president, and a way too “safe” one at that. He is the sort that is unlikely to generate much enthusiasm from even party loyalists, let alone a younger portion of the base looking for more conviction on important issues, such as free trade (like Clinton, Kaine has supported NAFTA and came late to his resolution against the Trans-Pacific Partnership) and regulation of the banking industry (proposals of his, while under the guise of being pro-regulation, have been criticized by progressive groups as being anything but). Tim Kaine may be a nice enough guy, but he was the wrong choice for Clinton’s presidential campaign, and may be symbolic of the “mainstream” wing of the Democratic Party that is keeping it from more enthusiastically embracing more liberal views.
To be fair, one might argue that “no” votes without much hope of dramatically altering the outcomes of these Cabinet nominees mean very little. In this regard, stances taken against potential office holders amount to little more than posturing. By the same token, however, for those who have registered more “yes” votes than “no” votes, perhaps these confirmation votes presage a deeper reluctance to embrace the Democratic Party as a whole, or at least magnify the effect of their senator’s centrism.
Where the rubber meets the road, so to speak, then, is with the looming vote to confirm Neil Gorsuch as the next Supreme Court justice. In a vacuum, Donald Trump’s choice of Gorsuch to fill the vacancy left by the passing of Antonin Scalia might not be so hotly contested by Democrats. As things in the political world have shaken out of late, though, there is additional context to consider. Republicans already had majorities in the House of Representatives and the Senate before the fateful events of November, and with Trump—a loose cannon if ever there were one—ascending to the highest office in the nation, the stakes are higher than ever for a party in the Democratic Party that is reeling from electoral defeats up and down the levels of government.
Of even higher relevance, meanwhile, is Merrick Garland’s stalled nomination for this same vacancy. As you’ll likely recall, Garland was tapped by President Barack Obama near the end of his tenure, which he was perfectly justified in doing. Effectually, Obama called conservative Republicans’ bluff, nominating the kind of jurist that appeals to those on both side of the political aisle, and thus requiring GOP lawmakers to all but in name concede their refusal to confirm or hear Merrick Garland was petty gamesmanship. Which, of course, they did. Mitch McConnell and Co. held their breath and waited for Obama’s second term to conclude, rejecting calls from their Democratic counterparts and their constituents alike to “do their jobs.”
With all this in mind, we return to the current kerfuffle over Neil Gorsuch. Whereas Trump’s various Cabinet picks have only needed a 51-vote majority to secure confirmation, the role of Supreme Court justice, because it is so vital and because it is a lifetime appointment, would require 60 votes as part of a procedural cloture vote to end debate and move on to the actual confirmation vote if Senate Democrats are determined to filibuster the nomination. So, how committed are the Dems and independents in the Senate to staving off the confirmation vote? Well, let’s just say they should have enough votes—a minimum of 41 would be required—to filibuster Gorsuch’s nomination. But it’s not exactly a safe margin, and fairly significantly, I feel, a few senators have either wavered on whether or not they will support a filibuster, or have outright indicated they are against this measure. Once again, Wilson Andrews and The New York Times, with the help of Audrey Carlsen, Alicia Parlapiano, and Jugal K. Patel, have devised another helpful graphic to help us sort out the positions for or against filibuster.
Undecided or Unclear: 2
Up for Re-election: 2 (Benjamin L. Cardin, Robert Menendez)
Ben Cardin and Bob Menendez are likely to vote against Neil Gorsuch in a final vote to determine if he is confirmed or not. Remember, though, we are talking about specifically pledging to support the 60-vote filibuster, and as of Tuesday, April 4, 4:30 P.M. EDT, their commitment was judged by the team at the Times to be undecided or unclear on that front. Cardin, for what it’s worth, has said he supports the filibuster on social media, and Menendez has apparently followed suit. Both senators are facing re-election in 2018, but that provides only slight plausibility as to why they would wait until Democrats were all but assured of having the necessary 41 votes given they do not really hail from strong red states. In short, and to be quite frank, it’s pretty cowardly of Ben Cardin and Bob Menendez to make their intentions known after the fact. The above-cited article from The Hill also name-checks Angus King, who, as we know, is an independent and has only managed a scant six “no” votes (and is up for re-election), as a late decider. As Democrats, however, you would expect better of Cardin and Menendez, both of whom have gone 12-for-19 in “no” votes, and as a progressive hailing from the state of New Jersey, I am severely disappointed in the latter.
Against Filibuster: 4
Up for Re-election in Solid Trump State: 3 (Joe Donnelly, Heidi Heitkamp, Joe Manchin III)
Not Up for Re-election: 1 (Michael Bennet)
Joe Manchin. Heidi Heitkamp. Joe Donnelly. We’ve heard these names before, haven’t we? Suddenly, their positions on Cabinet nominees, viewed through the lens of their opposition to the filibuster, make a lot of sense. All three are running for re-election in what are deemed “solid Trump states,” meaning Donald Trump carried them by more than five percentage points in the presidential election.
On one hand, I get that re-election in hostile territory, so to speak, stands to be difficult, and there are those of us who would be willing to accept a moderate Democrat who agrees with the party at least some of the time as opposed to a Republican who is more likely to promote a regressive political agenda. On the other hand, though, being, for all intents and purposes, light versions of Republicans arguably does little for the party and only helps depress turnout in elections, especially among independents and progressives. In this regard, the Dems who capitulate to conservative or even moneyed interests can be seen as conceding without making a concerted effort to expand their base among neglected demographic groups in their jurisdictions—playing politics in the short term and risking party support in the long term. In other words, the likes of Donnelly, Heitkamp and Manchin are playing not to lose rather than to win, and this same strategy as employed by Hillary Clinton and other Democrats only seems to be hurting the Democratic Party at the polls. Once again, speaking bluntly, Democratic leadership doesn’t seem to “get it.”
As for Michael Bennet, even for someone whose job is not immediately in danger, he has recognizably faced pressure from both the left and right regarding the filibuster. If Jon Tester, a senator in a red state up for re-election can support the filibuster, however, I submit Bennet (10-of-19 “no votes”) could have, too. Way to ride that center rail, Mike.
The Senate Republicans are expected to exercise the so-called “nuclear option,” essentially rewriting the rules so that 51 votes can advance proceedings to the actual confirmation vote. So, why bother with a filibuster? Democrats and others on the left would insist that this is more than warranted for the GOP’s refusal to hear Merrick Garland, and besides, with a president whose ethical conflicts are barely disguised as such, and who many contend is too unhinged to serve in his present role, there are those who call on Senate Dems to demand Trump release his tax returns at a minimum before considering Neil Gorsuch for the vacancy in the Supreme Court. Then again, Republicans would say that the Democrats “started it,” after rewriting Senate confirmation rules for executive and judicial nominees in their own right in 2013. Is all fair in love, war, and politics, or do two wrongs not make a right? I guess it depends on what side of the fence you’re on, honestly.
Even if the Republicans “go nuclear,” as President Agent Orange would have it, resisting the confirmation of Gorsuch and other picks until that point based on the merit of held ideals would convey to voters that the Democrats are willing to fight for their constituents and for what they believe in rather than merely trying to hold on to what seats they have. Moreover, claims from Joe Manchin et al. that politics should be kept out of the judiciary are weak sauce when politics so clearly stand behind the decision to nominate Neil Gorsuch in the first place. If Dems like Claire McCaskill want votes from Bernie Sanders supporters, they can’t just ask for it—they have to earn it. That is, they have to demand the kind of change that authentically speaks to the needs of their rank-and-file constituents, and not merely count on voters’ ability to distinguish their policies from those of the GOP, especially when calling for incremental or middling reforms. Otherwise, with Democrats like these, who needs Republicans?
On the eve of the start of Black History Month, President Donald Trump didn’t disappoint his conservative fans or white supremacist supporters when he announced his nomination of silver-haired white dude Neil Gorsuch to fill the vacancy in the Supreme Court left when Justice Antonin Scalia left this Earth and departed for that big courthouse in the sky. Gorsuch, despite being the youngest SCOTUS nominee in a quarter of a century, has the pedigree of a Supreme Court Justice. He’s studied at Columbia, Harvard, Oxford—not a shabby hand, eh?—and in terms of his professional career, he’s been a clerk for a United States Court of Appeals judge and two Supreme Court Justices (Byron White and Anthony Kennedy), worked in a D.C. law firm, was principal deputy to Associate Attorney General Robert McCallum at the DOJ, spent time as a Thomson Visiting Professor at the University of Colorado Law School, and has served in his current role as a judge on the U.S. Court of Appeals for the Tenth Circuit out of his duty station in Denver, Colorado.
In other words, Judge Gorsuch is, unlike a number of Trump’s picks for his Cabinet, eminently qualified for the position for which he has been tapped, and for that, I respect the man. Do I think he should be confirmed as the next Supreme Court Justice, however? In a word, no. It’s nothing personal. I mean, heck, I didn’t know who the guy was until Pres. Trump’s prime-time announcement. Regardless, as I’m sure a number of key Democrats do, I have concerns about his priorities as a jurist and whether or not he would let his political and personal/spiritual ideologies interfere with his interpretation of the Constitution as a member of SCOTUS. Accordingly, I feel the Dems should take their time and do their due diligence before rubber-stamping Neil Gorsuch into service on the highest court in the country. After all, and if nothing else, it’s only fair.
On that last note, let’s take a few steps back and consider the current political climate in which we’re operating. In a vacuum, given his extensive experience, Gorsuch might not be considered a terrible pick, or at the very least, Democrats might have been more willing to work with the Trump administration and Republicans on moving along the confirmation process at a brisker pace. With Pres. Trump in the midst of signing a slew of grotesque executive orders to start his tenure in the Oval Office, however, and in light of the GOP’s obstruction of the Democrats’ own pick to fill Scalia’s vacant seat in the Supreme Court in the remaining months of President Barack Obama’s run as Commander-in-Chief, a measure of resistance on the Dems’ part might not only be advisable, but warranted.
Antonin Scalia died on February 13, 2016, and Obama officially nominated Merrick Garland to fill Scalia’s vacancy on March 16, 2016. The move on President Obama’s part to pick Garland, in addition to selecting someone highly experienced in his own right, was intended to force the hand of Republicans in the Senate. Would GOP lawmakers confirm Merrick Garland and resign to having a Supreme Court Justice many of them admired, but wasn’t as conservative as the more vocal factions within their ranks would have liked, or would they be a dick about things and refuse to hear Garland on principle that he was Obama’s choice and therefore had to be neutralized? Um, I think you know where this is going. Senate Majority Leader Mitch McConnell and the Republicans chose to be a dick about things. No hearings. No votes. Nothing. Essentially, they refused to do their jobs, claiming they lacked sufficient time to process Garland’s nomination and that the incoming President should decide who fills the vacant SCOTUS seat—even though they realistically had plenty of time to respond to Merrick Garland’s bid, and there was no standard or tradition which prevented a President of the United States from nominating someone to fill a sudden vacancy in his or her final year in office. Yup, Senate Republicans were being huge dicks.
Now, of course, the shoe is on the other proverbial foot, with of course the difference being that the Republicans had a majority in the Senate then and do now, which explains why they’ve been so keen to try to ram-rod President Trump’s Cabinet picks through the confirmation process. Not only do Republican leaders seek this treatment with Neil Gorsuch, however, but to an extent, they seem to expect it. The aforementioned Mitch McConnell had this to say about what he hopes to see from his Democratic Party counterparts:
In the coming days, I hope and expect that all Senate colleagues will give him fair consideration just as we did for the nominees of newly-elected presidents Clinton and Obama. This is a judge who is known for deciding cases based on how the law is actually written, even when it leads to results that conflict with his own political beliefs. He understands that his role as a judge is to interpret the law, not his own viewpoint.
Well, Sen. McConnell, you certainly talk a good game. Indeed, McConnell is not the only person to speak highly to Gorsuch’s credentials or his education, and Trump’s nominee has been known to diverge from his conservative principles when it suits him. Still, this blanket praise for Judge Gorsuch seems to be what we should anticipate from our federal jurists at somewhat of a minimum. Deciding cases based on how the law is actually written, interpreting the law and not one’s own viewpoint—these, one might argue, are important ethical standards for any judge. That is, Neil Gorsuch shouldn’t be assumed to be or propped up to be superior to other judges just by virtue of remaining free from bias. By this token, we should ask nothing less of the man, especially if he is to take up residency on the Supreme Court.
As for the timing of the SCOTUS nomination, Mitch McConnell conveniently leaves out what happened not at the onset of Barack Obama’s tenure, but in its twilight: that of the refusal to even dignify Merrick Garland’s nomination with a response. Thus, if Republicans are indignantly claiming that Democrats delaying votes to request additional disclosures from and information about key Cabinet picks or seeking to drag their feet on confirming Mr. Gorsuch is fundamentally and substantially different from their move to block Garland’s nomination so as to eliminate their chance of replacing the late Antonin Scalia with someone other than another version of him, let me not mince words by offering that this is complete and unmitigated bullshit.
Moreover, claiming that “the people” should be effectively allowed to pick the next Supreme Court Justice nominee by choosing the President is also balderdash, hogwash, and poppycock. Not only should politics not get in the way of going through the motions on reviewing a candidate for a SCOTUS vacancy (i.e. if you want to be dicks and refuse him after giving him a hearing, OK, but at least give him that), but numerous constituents did use their voice during the months of the GOP refusal to acknowledge President Obama’s nomination, and it was in protest, with the common refrain from those in dissent being “Do your job!” Especially for members of a political party that has made it a habit of treating those buoyed by the social safety net as lazy, shiftless sorts, refusal by Republican Party leaders to entertain Obama’s selection in the name of politics could be seen as blatantly hypocritical. At any rate, rather than heed the desires of all their constituents, Mitch McConnell and Co. catered to their base. Not terribly surprising, but ideally, not how lawmakers professing to act in everyone’s best interests should be acting.
Before we get ahead of ourselves in conceiving of Democratic Party resistance to Donald Trump’s nomination for the Supreme Court as political ransom, if not brinkmanship, it should be stressed that key Democrats do see legitimate reasons, if not to vote against Neil Gorsuch outright, to, if nothing else, demand the chance to engage him directly on his views and trends within his judicial record. Richard Primus, in a well-thought-out piece about Gorsuch for Politico, identifies him by the designation “Scalia 2.0,” a nod which probably won’t gain him much traction with Scalia 1.0’s detractors. This passage, in particular, perhaps best encapsulates the thrust of Primus’s article, and in doing so, puts President Trump’s nomination in a historical context:
The most sensible way to think of Gorsuch may therefore be to imagine what Scalia might have been if he had come along thirty years later. Scalia came of age at a time when legal conservatives were doing battle with a relatively liberal Supreme Court. Perhaps not surprisingly, they framed their views in terms of judicial restraint and deference to majoritarian lawmaking. Gorsuch’s generation of conservatives, which has lived its whole adult life with a more conservative Court, seems more inclined to see majoritarian regulation as the problem and the judiciary as a good solution.
If Richard Primus makes this very general distinction, though, why the allusion to Judge Gorsuch as a new version of Justice Scalia? Despite the two men operating or coming of age, so to speak, in different eras, they share the same staunchly conservative views on a number of key issues, including abortion, affirmative action, capital punishment, and firearms, which obviously appeals to the right. Meanwhile, noting the divergence within the quoted passage above, Neil Gorsuch tends to differ from Antonin Scalia on the dimension of the role of the courts in relation to business regulation, favoring instead greater judicial discretion and, therefore, diminished capacity for regulatory agencies to interpret existing statutes, and on the specific issue of the First Amendment, Gorsuch appears inclined to view “religious freedom” more expansively, which would stand to give businesses and closely-held corporations more leeway in how they operate and how they pay their taxes (or don’t). Again, a seeming victory for the religious right, notably evangelicals, who came out strongly for Trump in the 2016 election. In all, the concern is that Judge Gorsuch, as a Justice on the Supreme Court, would favor corporate interests over the concerns of average Americans, and would emphasize “religious freedom” over individual liberties and freedom from discriminatory business practices.
In all, representatives from both parties would appear to have important decisions to make in the coming days and weeks regarding Neil Gorsuch’s nomination. For Democrats, the chief concern is whether or not they should compel Republicans to seek 60 votes to confirm President Trump’s nominee. Under a procedural vote known as cloture, the minority party in the Senate has the ability to require the approval of 60 senators to end the debate over a candidate for a position as vital as Supreme Court Justice and advance to an up-or-down vote. Senate Minority Leader Chuck Schumer, for his part, has indicated his party’s intention to seek this strategic avenue rather than to acquiesce Gorsuch’s confirmation, though some Democrats conceivably could be concerned about employing this tactic only to have it used against them in the future, and would accordingly opt to fight harder another day on another issue.
Republicans, meanwhile, could override the 60-vote requirement of the cloture-filibuster-strategic-thing-a-ma-jig—you know, assuming the Dems actually go ahead with a unified front in favor of such a maneuver—by making use of the so-called “nuclear option.” This would involve an actual change of the rules for filibustering a Supreme Court nominee, enabling the GOP to push Neil Gorsuch through the confirmation process like poop through a goose. Donald Trump, because he is a big, stupid baby and wants to get his way all the time, has advised his Republican confederates to use the nuclear option at first sign of a potential deadlock on Gorsuch’s nomination. (Side note: even when not involving actual nuclear weapons, Trump seems way too eager to use the nuclear option. Dude may have a nuke problem, in fact. Just saying.) Understandably, despite their recent history of dickishness, Republican leaders may be reluctant to “go nuclear,” along similar lines as to why Democrats might be hesitant to insist on 60 votes to confirm Judge Gorsuch. As this report by Jake Miller for CBS News details, such a rule change would come fairly close on the heels of a shift in 2014 to require only a 51-vote majority to confirm non-Supreme Court judiciary and executive branch nominees, and could be seen as greasing the ever-slippery slope away from what many would argue is a necessary system of checks and balances for the federal government. Besides, they, too, by changing the rules of the engagement, run the risk of having this tactic turned around on them.
I, of course, as a registered Democrat and as someone who would like to see the Democratic Party regain control of the Senate, if not the House and White House eventually as well, have a dog in this fight over Justice Antonin Scalia’s vacant seat on the Supreme Court. Perhaps unsurprisingly, I hope Senate Democrats filibuster the nomination of Neil Gorsuch, and do whatever is in their power to prolong the confirmation process in light of ideological differences they have with Judge Gorsuch. You know, push back a little. Show us party supporters you have a backbone, for Christ’s sake! Granted, challenging Republicans on the Gorsuch nomination and taking back control of the executive and legislative branches is only as good as the commitment to truly progressive policies and principles, something which isn’t exactly guaranteed from a party that just went all in on Hillary Clinton as its presidential nominee. In the short term, however, Neil Gorsuch can and should be resisted as an extension of Donald Trump’s and the GOP’s pro-business, anti-personal-freedom agenda. Case closed.