President Donald Trump’s nomination of Neil Gorsuch to the Supreme Court is a clarifying moment for Democrats. We can fight the nomination by every possible means and risk losing the filibuster for future nominations, or we can acquiesce to confirmation hearings and an up or down vote that they will likely lose. It’s a Hobson’s choice. But there is a right answer to the Democrats’ dilemma.
My view? Democrats must filibuster Gorsuch as the first step of a comprehensive strategy to revitalize the Democratic Party and regain power. Democrats have to embrace the fact that they are now an opposition party and being to act like it. Only then can the party begin to recover from the electoral carnage of the past eight years. We may lose this battle, but we will be better prepared for the ones ahead if we fight now.
The state of play
To understand my argument, let us take a moment to consider where we stand. The situation is bleak. Donald Trump’s victory over heir-apparent Hillary Clinton may have shocked Democrats, but it follows a clear trend. Since 2008, Democrats have lost power at all levels of government.
How bad is it? A recent analysis by RealClearPolitics of House performance, Senate performance, gubernatorial performance and state legislative performance found that Democrats are the weakest they have been in 80 years. Democrats trail Republicans 52-48 in the Senate (including two independents) and 241-194 in House. Four years away from a critical census and redistricting year, Democrats control just 16 of 50 governorships. But the losses at the state legislative level are staggering. In the past eight years, Democrats have shed nearly 1,000 state house and senate seats. We control only 31 percent of state legislators, the lowest since 1920. Our bench is decimated. Republicans can claim a trifecta (both houses of the legislature and the governor) in 24 states. Democrats have just 6.
Anyone hoping that the excesses and abuses of the Trump administration will lead to a swift recapture of Congress should think again. The math in 2018 is horrible. In 2016 Democrats defended 10 Senate seats to the Republicans’ 24. Next year the reverse is true. Democrats must defend 25 Senate seats (including 2 independents) to the Republicans’ 8, many of them in red states. Among the seats Democrats must defend are Manchin (W.Va.), Heitkamp (N.D.), Baldwin (Wisc.), Nelson (Neb.), Donnelly (Ind.), McCaskill (Mo.), Tester (Mont.), Heller, (Nev.), Brown (Ohio), and Casey (Pa.). All are states Hillary Clinton lost. Of the Republicans – Corker (Tenn.), Cruz (Tex.), Barrasso (Wyo.), Hatch (Utah), Wicker (Miss.), Fischer (Neb.) – are considered safe. Only two GOP seats – Heller (Nev.) and Flake (Ariz.) – are even thought to be in play, and both still lean Republican. The map is daunting.
Demography will not save us. Yes, Democrats are getting younger, more diverse, and more liberal. (A fact I will return to in a moment.) But they are also more clustered than ever before in cities and suburbs. That’s great for the popular vote, but it won’t help with the electoral college, control of the House of Representatives or state legislative seats. It’s why maps of American voters tend to look like this.
Over the past few weeks, President Trump and the Republicans have pushed through every single cabinet appointment, some with Democratic support. Only Education Secretary nominee Betsy DeVos came close being rejected and she was confirmed 50-50 with Vice President Pence breaking the tie. Just two Republicans crossed over and opposed her.
Given the odds why should Democrats attempt a filibuster of Neil Gorsuch?
We are a minority party in a hostile Congress with an increasingly imperial presidency. The Supreme Court is our check on executive power. It is our guarantor of civil rights, including women’s rights, LGBT rights, and the rights of people with disabilities. The Court decides whether environmental, health, and safety protections are constitutional and enforceable.
From Brown v. Board of Education, to Roe v. Wade, to Obergefell v. Hodges, the Supreme Court has validated the progressive agenda. The conservative slant of the Court over the past 40 years has not always favored our interests, but we have largely prevailed on matters of civil rights and federal power. The arc of history has bent, haltingly at times, towards justice for all American.
That can all change. Despite our legal victories, or perhaps because of them, the Republican base understands the critical importance of the Supreme Court to their anti-government, social conservative agenda. The issue motivates them in a way the Democratic base still does not grasp. Neil Gorsuch will not only fill Justice Scalia’s shoes but could move the Court even further to right. Although Justice Kennedy will remain the swing vote on a Court with Gorsuch confirmed, one more justice of his ilk and the liberal project is in grave danger. Recall that Ruth Bader Ginsberg is 83 years old. Anthony Kennedy is 80, and Stephen Breyer is 78.
So why not wait until the next vacancy – the one that could truly shift the Court away from progressive constitutionalism? Won’t we need the filibuster then?
First, the filibuster is already gone if you cannot use it. Caving on Gorsuch does not preserve the filibuster; it simply postpones its inevitable demise. If the Republicans are serious about their threat to “go nuclear,” then there is nothing to stop them from doing so on the next nomination. If that is the state of play, the filibuster is as useless then as it is now. Remember the 2018 math. It won’t likely get better for Democrats in the Senate.
Second, the notion that allowing confirmation of Gorsuch will preserve the filibuster for future battles assumes too much. Even if Gorsuch is confirmed, Republicans may well eliminate the filibuster over other judicial nominations, or even legislative matters, before a President Trump makes his second Supreme Court nomination. Senate Majority Leader Mitch McConnell has repeatedly proven his willingness to wield power as it suits him, and then blame it on Democrats. Don’t think for a minute our capitulation now will curry any favor later.
Third, Democrats will lose numbers in the Senate in 2018. Democrats instincts will be to run to the middle, especially in red states, but this will not save them. With their robust state bench and solid fundraising capability, Republicans will challenge Democrats with established red meat candidates. Capitulating to Trump on the Supreme Court or other nominations will not earn Democrats a pass. It will only depress their base turnout – a base that is increasingly young, diverse, liberal, and angry. The old DLC centrist playbook is worthless in today’s political environment. What good will the filibuster be if Democrats continue to lose seats in the Senate?
Fourth, and most importantly, this is a stolen seat.
The nomination of Merrick Garland was an olive branch to the GOP, but one the Republicans quickly spurned. Garland is superbly qualified for the Court, but at 64 years of age, he isn’t young or particularly liberal. The GOP would never nominate someone like Garland, no matter how likable or qualified, because they are committed to moving the court to right for generations to come. Roberts was confirmed as Chief Justice at age 50, the youngest chief since John Marshall in 1801. Samuel Alito was confirmed at 46. Clarence Thomas was 43. Neil Gorsuch is 49.
No viable precedent justified blocking a nominee solely on the basis that it was a president’s last year. But Mitch McConnell refused to give Merrick Garland so much as a hearing, let alone a committee vote, a cloture vote, or a vote on the floor. Only a handful of Republicans would even meet with him. This was a disgrace.
Do not be fooled by Republican rhetoric. Merrick Garland was not Borked. Robert Bork received hearings and an up or down vote. His nomination failed on its own merits. There was no “Biden Rule.” In the wake of the rancorous confirmation process of Clarence Thomas, then-Sen. Joe Biden suggested in a floor speech on June 25, 1992, that if there should be a new vacancy on the Court – there was no vacancy and no nominee at the time – then consideration of the nominee should be delayed until after the presidential election. He never said that a sitting president was not entitled to have his nomination considered in an election year. As it turned out, there was no Supreme Court vacancy that year, so Biden’s point was moot. But Antonin Scalia died on February 13, 2016. President Obama nominated Merrick Garland a month later on March 16. The nomination process for president was far from complete. Moreover, in our history the Senate has confirmed 21 of 24 nominees to the Supreme Court in the last year of a president’s term.
The Republicans refusal to even consider Garland’s nomination has no parallel. In a letter to Senate Republicans, more than 356 legal scholars said that denying Garland consideration “is contrary to the process the framers envisoned in Article II and threatens to diminish the integrity of our democratic institutions and the functioning of our constitutional government.” Other scholars wrote President Obama to affirm that anything less than “a full debate and votes on the Senate floor” would be “a serious and indeed unprecedented breach of the Senate’s best practices and noblest traditions for much of our nation’s history.”
Democrats must not reward such treachery by simply acquiescing to an up or down vote on Gorsuch. More times than I care to recount, with circuit courts and now at the Supreme Court, the Republican policy of unprincipled obstructionism has cost Democrats a lasting legacy. If we truly care about constitutional interpretation, good government, and the future of the Court, we cannot let this pass.
If the Republicans use the “nuclear option” so be it. As one commentator writes: “If Democratic senators won’t throw everything into stopping this nomination, regardless of the price, then they may as well pack it up and go home, because they have cowered and cringed their way into a government where governance has died, where party is more important than country.”
Our position should be no nominee but Garland. Our goal should be to reestablish the norm that nominees receive hearings and votes. We should filibuster every Trump nominee until he either re-nominates Garland or we lose. Really, what other choice is there? The alternative is we lose Garland and concede the value of an orderly and fair confirmation process. The alternative is to acquiesce to a naked power grab.
This would be a significant change in attitude and direction for Senate Democrats. But it is better late than never.
The Duty of the Opposition is to Oppose
The Democrats’ position with respect to Garland is weaker than it should be because Democrats and President Obama failed to fight when it mattered, trusting that the problem of Merrick Garland would be solved with a Clinton victory and Senate gains in November. There were no rallies of the kind we are seeing now. No meaningful appeals to the progressive base. No efforts at all to shut down the Senate until Garland received due consideration. The critical issue of the Court received only lip service from Hillary Clinton and Senate Democrats during the fall campaign.
It seemed many Democrats were content to let Garland’s nomination twist in the wind in hopes that Hillary Clinton would start fresh and pick a younger more liberal candidate. Their overconfidence and complacency were costly.
To the extent Democrats and their consultants bothered to promote the Garland nomination, their appeal was not to the Democratic base on the importance of the Court for choice, the environment, clean elections, or civil rights. It was to the Republicans themselves. The message? #DoYourJob. The twitter campaign started the very day Garland’s nomination was announced, when McConnell vowed that Garland would not receive a hearing. But that would be the extent of the Democrats campaign. After a seven-week summer recess, a handful of Democrats held a press conference with that same message.
What Democrats failed to realize, and by all accounts continue to misapprehend, is that Republicans were in fact doing their job. As Randolph Churchill once said, “The duty of the opposition is to oppose.” In blocking Merrick Garland, Republicans were doing exactly what their base expected of them. With no principled basis on which to oppose Garland on the merits, they gambled on the process. In November, the gambit paid off.
Now it is our turn. Democrats must to learn to oppose. Triangulating may have worked in the 1990s but it won’t work now. According to FiveThirtyEight.com, in 2001 just 30 percent of Democrats identified as “liberal” while 47 percent claimed to be “moderate.” Last year, more Democrats called themselves liberal than moderate, 44 percent to 41 percent.
Bernie Sanders achieved success in the primaries with the party’s increasing number of younger, diverse, urbane voters by articulating a focused populist message. But, most significantly, his movement is still growing and now represents a potent Tea Party-like threat that previously did not exist in the Democratic Party. Organizations like Justice Democrats and Brand New Congress and Indivisible have claimed the mantle from MoveOn and other first generation online organizing platforms. Add to this the fear and frustration with the election of Donald Trump, which is now manifest in the some of the largest spontaneous demonstrations in our nation’s history, and we have a new political reality.
Too many Democratic leaders still do not understand that both the base and the middle respect leaders who will vote on principle, act on principle, and explain those principles. On issues from climate change to health care to corporate power, some Democrats have been quick to capitulate. Such actions will not gain Republican and Independent voters, but they will depress base turnout. Not only will many progressives no longer support Democrats who do not fight for their principles, but grassroots Democrats are already threatening to primary Senators who support Trump nominees like Rex Tillerson, Scott Pruitt, and Betsy DeVos. These grassroots Democrats are resisting Trump and they expect Democratic leadership to do the same.
The times have changed. The party has changed. Party leaders must change with it or they will face the consequences.
The Way Forward
The Gorsuch fight is only the beginning. The Democratic Party needs a complete reset. We have just four years to right the ship. And we have to do it while our agenda takes constant hits from the Trump administration.
In the words of Daniel Burnham, “If you fail to plan you plan to fail.” For decades we have been outspent and out-organized by the GOP. Republican campaigns to control state legislatures began with an emphasis on candidate recruitment from the school board to the state house. New legislators were then aided by ALEC and other right wing think tanks. Having gained control of state legislatures, Republicans gerrymandered districts and passed laws making it more difficult for people (usually minorities and Democratic districts) to vote. Their success is no accident.
Democrats need a plan to get from here to power in 2020. Here is how we do it:
- Focus our energy on retaking the House.
Admit the Senate is hopeless. The math simply doesn’t work in 2018. The best we can reasonably hope for is to minimize losses and lay the groundwork for bigger gains in 2020 when Class 2 seats are up, currently 22 Republicans and 11 Democrats. Retaking the House is difficult but not impossible. Clinton defeated Trump in 23 districts held by Republicans. Those districts and other swing districts will be critical. Retaking the House not only blunts the Trump agenda but also gives the Democrats subpoena power and the ability to initiate impeachment proceedings, should that be necessary.
- Redistricting is Everything
The surest way to recapture the House of Representatives is to take control of redistricting. Too many states are a badly gerrymandered. Take Virginia. All five statewide offices – governor, lieutenant governor, attorney general and both Senators – are held by Democrats. Barack Obama won the state twice. Hillary Clinton won it in November. And because of gerrymandered districts, Republicans dominate the congressional delegation 7-4. Everything the DNC and state parties do between now and the 2020 census must be done with an eye to capturing control of redistricting.
- Rebuild from the bottom up.
It’s time to rebuild the bench. Democrats have put too much focus on the presidency and not enough on grassroots party building and candidate recruitment. The Democrats’ failure to focus on state and local races in the years leading up to the 2010 census cost us across the board as Republicans seized power and gerrymandered state and federal legislative districts to consolidate it. Every candidate for DNC chair has talked about the importance of rebuilding the party at the grassroots level. This needs to be a reality.
- Get a spine.
Democrats must to learn to fight. Resistance is our job now. And Gorsuch is a good place to start.