President Trump’s nomination of federal judge Neil Gorsuch to the Supreme Court has Democrats demanding payback. They want to avenge the treatment of Merrick Garland, President Obama’s nominee to the high court who never even got a hearing from Republicans. The question is whether to oppose Gorsuch now or another likely Trump nominee later.
Not only should Democrats fight now, but they also should copy completely the GOP playbook to do it. Forget Gorsuch. The target should be the president who nominated him.
This hit me while tuning in to a discussion on Saturday between MSNBC anchor Joy Reid and Sen. Richard Blumenthal (D-Conn.) about the looming battle over Trump’s first Supreme Court nomination. “We cannot forget the way that the Republican leadership absolutely betrayed our constitutional duty” in opposing Garland, Blumenthal told Reid. “They really stole the seat.” That’s strong language that I’m hard-pressed to correct.
When Senate Republicans put the kibosh on Garland, they trained their fire on President Obama. And they twisted a 25-year-old speech by his vice president to give their asinine argument the air of authority. Then-Senate Judiciary Chairman Joe Biden (D-Del.) argued that President George H.W. Bush should refrain from filling Supreme Court vacancies during the 1992 election year unless he consulted with the Senate or selected a moderate jurist. Even though there was no opening on the High Court at the time Biden delivered those remarks, Republicans dubbed the first half of his remarks “the Biden rule” and dragged Obama for having the temerity to fulfill his Constitutional duty.
Blumenthal then went on to tell Reid, “We will use every tool to block this nomination as long as is necessary if we conclude he is out of the mainstream.” This is absolutely the wrong way to wage this battle. The question isn’t whether Gorsuch is “out of the mainstream.” The reality is that Trump IS “out of the mainstream.” And the president has given Democrats — and the American people — all the evidence they need to make the case.
Trump’s attacks on the judiciary as a candidate and as president were unprecedented. We’re not talking about calling out the Supreme Court like Obama did over its Citizens United decision during his 2010 State of the Union address. Folks in Washington were aghast over that rebuke. A decidedly mild rejoinder compared to what his successor has done.
Trump used his campaign of racism and xenophobia to attack the independence and integrity of a federal judge overseeing a lawsuit against him that concerned Trump University. “The judge, who happens to be, we believe, Mexican, which is great,” Trump said last May. When it was revealed that Curiel is American and was born and raised in Indiana, Trump continued his attack but switched to “of Mexican heritage.”
This jaundiced view of the judiciary extended to Muslim American judges. “It’s possible, yes. Yeah. That would be possible, absolutely,” Trump told CBS News’s John Dickerson, who asked whether the then-presumptive Republican presidential nominee thought a Muslim American jurist would be biased against him because of his proposed Muslim ban. That was last June. Now, let’s fast forward to Feb. 4
James Robart, a federal judge in Seattle, temporarily halted Friday night Trump’s chaotic executive order that banned immigration from seven majority-Muslim countries. The president’s response was issued by a series of tweets. The most egregious slammed Robart as a “so-called judge.”
Trump’s attacks on judges are out of the mainstream. Firing Sally Yates, the acting attorney general who ordered Justice Department lawyers not to defend it because she was not “convinced that the Executive Order is lawful,” is out of the mainstream. So is the way he fired her.
Picking fights with an ally as stalwart as Australia is out of the mainstream. Threatening to send troops to Mexico is out of the mainstream. Scoffing at the murderous reputation of Vladimir Putin and putting the United States on par with Russia is out of the mainstream. From everything I’ve read, Gorsuch is a fine man and an able jurist. From everything I know, Trump is an undisciplined, dare I say radical president who threatens our Constitution and the separation of powers enshrined in it.
Trump has broken all the rules. And it’s vitally important Democrats follow suit. With Republicans in control of the Senate and disinclined to provide a check on the president, surely they will lose the fight over the Gorsuch nomination. But Democrats have to fight like hell while doing it. The signal such a spectacle would send to their base is less important than the message it would send to Supreme Court Justice Anthony Kennedy. And I’ll explain why that matters in my next post.
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