By Rich Lowry
Tuesday, April 04, 2017
Throughout its history, the United States Senate has
experienced disgraceful filibusters (Strom Thurmond against the 1957 Civil
Rights Act), entertaining filibusters (Huey Long in 1935 reciting a
fried-oyster recipe) and symbolic filibusters (Rand Paul making a point about
drone strikes in 2013). But the filibuster that Chuck Schumer is about to
undertake against Judge Neil Gorsuch’s nomination to the Supreme Court is
perhaps the institution’s dumbest.
It won’t block Gorsuch, won’t establish any important
jurisprudential principle, and won’t advance Democratic strategic goals —
indeed the opposite. A Gorsuch filibuster would be an act of a sheer partisan
pique against the wrong target, with the wrong method, at the wrong time.
The Democratic effort to portray Judge Gorsuch as out of
the mainstream has fallen flat. He has the support of President Barack Obama’s
former solicitor general Neal Katyal. He got the American Bar Association’s
highest rating. He’s been endorsed by USA
Today. He will receive the votes of at least three Democratic senators.
Some radical.
From the moment of his announcement by President Donald
Trump to the very last question at his confirmation hearings, Gorsuch has been
an exemplary performer, whose deep knowledge has been matched by his winning
temperament. The attack on him as an enemy of the little man is based on a few
decisions where he clearly followed the law, even though it resulted in an
unsympathetic outcome.
Much has been made of a case involving a driver for
TransAm Trucking who had pulled over on the side of the road in freezing
temperatures and, fearing for his safety, drove off in defiance of a direct
order of a supervisor. Days later, he was fired. Alphonse Maddin claimed that
the company had violated a whistleblower protection under federal law. In a
dissent from the decision of the Tenth Circuit, Gorsuch carefully argued that
the statute’s protections didn’t apply to the trucker, although he stipulated
that “it might be fair to ask whether TransAm’s decision was a wise or kind
one.”
If Schumer upholds the filibuster against Gorsuch — and
it looks like he has the votes — Senate majority leader Mitch McConnell will
almost certainly exercise the so-called nuclear option eliminating the filibuster
for Supreme Court nominations. Schumer portrays this as an act of procedural
vandalism against the Senate, although he has no standing as vindicator of
Senate tradition.
First, a partisan filibuster against a Supreme Court
nominee is unprecedented (Lyndon Johnson’s nominee for chief justice, Abe
Fortas, was successfully filibustered by a bipartisan coalition). Second,
Democrats already nuked the filibuster for other nominations besides the
Supreme Court back in 2013, with Chuck Schumer’s support at the time. Finally,
Democrats talked openly about how they’d use the nuclear option if Republicans
filibustered a Supreme Court nomination from a prospective President Hillary
Clinton.
In short, Democrats are departing from the Senate’s
longtime practices and excoriating the GOP for responding with a tactic that
Democrats themselves pioneered. Process questions are always a festival for
partisan hypocrisy. This is still a bit much. Regardless, Ed Whelan of the
Ethics and Public Policy Center notes that there isn’t much of a rationale for
keeping the filibuster for Supreme Court nominees if it has already been
eliminated for all other nominations.
Putting all this aside, a Gorsuch filibuster doesn’t even
serve Schumer’s narrow interests, besides placating the left-wing #resistance
to Trump that is demanding it. It would be shrewder for Schumer to keep his
options open for a future nominee. If there’s another vacancy, perhaps Trump
will nominate a lemon, or the Republicans won’t be so united, or the higher stakes
of a conservative nominee replacing a liberal justice will create a different
political environment. In these circumstances, it’s possible to imagine
Democrats filibustering and Republicans not managing to stick together to
exercise the nuclear option.
Maybe, but now we may never know. Because Chuck Schumer
is about to make Senate history — for astonishing shortsightedness.
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