President Trump has again proven true to his word and nominated a Constitutional originalist to fill the vacancy on the Supreme Court. I listened to the President make the announcement, and to Judge Gorsuch’s remarks last night. Since those two statements told me all I need to know, I have deliberately refused to listen to any analysis on this nomination.
What happens now? The Democrats in the Senate are in a really tough spot. They are faced with a Judge that received unanimous approval 10 years ago when he was nominated for the seat on the 10th Circuit. This means that no one now serving in the Senate has ever voted against this judge, and most of them have previously approved his record. Strike One
There will be a lot of bluster and bloviating about the danger to the nation from getting such a fringe ideologue on the court, but the fact is, this man is exactly like Justice Scalia, who he is replacing, and last year when he passed away, virtually all the Democrats had glowing things to say about him. Strike Two.
If the Democrats filibuster this nomination, it is clear that the GOP leaders are prepared to “go nuclear.” That means simply change the rules to require only 51 votes to cut off debate rather than the current rule of 60. That, you may remember is a trick they learned from former majority leader Harry Reid. If Reid had not set that precedent, the likelihood of Republicans being the first ones to break a century of tradition in the Senate would be virtually zero. Thanks to Harry Reid, that option is now completely viable.
Also, if Democrats insist on a filibuster, and the Republicans change the rules to break it, two more things happen that are bad for Democrats. First, ten Democrats up for reelection in 2018 in states carried by Donald Trump are in a world of trouble with their constituents. Second, Democrats lose the option of a filibuster attempt after the rules are changed for SCOTUS nominees. That means that when a vacancy occurs (like 83 year old Ginsberg) a liberal seat is open, and President Trump gets to replace that liberal with another conservative. That could happen two times in the next four years, and if it does, the Court would be 7 to 2 conservative, and likely to stay that way for a generation. Strike Three.
The best option for Democrats here is to let this one go. They could technically filibuster to have cover with their base, but allow Trump state Senators to support the nomination (8 of them) to break the deadlock, and then a party line vote (52-48) puts Justice Gorsuch on the Court. The balance on the Court would be as it was with Scalia, 5-4. That would preserve their filibuster option for the next vacancy, but then they have to hope the next vacancy does not occur until after the 2018 election cycle. Possible… yes. Likely… well….
The Democrats have lost over 1,000 seats in legislatures across the country since 2010. They lost many more in November 2016. The polls are already tilting in many of the 2018 Senate states, toward the GOP. A big loss in that election could give Republicans a filibuster and veto proof majority in the Senate. If that were to happen, GOP majority in the House might also increase. None of this is good news for Democrats.
To continue with the baseball analogy, let’s say a game is in the bottom of the 15th inning with the home team at bat but down by three runs with two outs and no one on base. The long tie since inning 7 was just broken by the visitors in the top of 15 with a three run homer, which has forced the home team coach to put in several of his best pinch hitters already but they failed to come through.
You have to understand the rules in baseball to get this nest part. When a pinch hitter is put in, he has to replace someone in the field. Once a trade is made and a player is removed, he cannot reenter the game. The home team pitcher, batting ninth is up to bat. The coach’s bench is all but bare, and the only available guy left is a relief pitcher. Pitchers are not known for their hitting, for obvious reasons. The only chance for a win is for either the active pitcher (batting average .125) or the relief pitcher (batting average .127) to get on base, so that the top of the order comes up and the first two batters also get hits to load the bases. That will allow the cleanup hitter (#4 in batting order) to come to the plate (batting average .342) and swing for the fence to win the game with a grand slam home run. Any mistake that allows a ground ball, pop up, or fly ball or strike out ends the game. It has happened, but the odds of it are very long.
The fat guy in the seat beside yours is about to finish his 9th hotdog even though his big foam #1 finger has never left his hand. He turns to you and says, “I will bet you $20 our team wins this game.” What do you do?
Translate that bet to say this. “I will bet you the national debt that the Democrats can thumb their nose at the voters for two more years and still manage to recapture both the House and the Senate, successfully impeach both Trump and Pence on the same day to allow their newly installed Democrat Speaker of the House to assume the Presidency. Yeah, I would take that bet too.