The Washington PostDemocracy Dies in Darkness

Opinion The worst arguments on Gorsuch and the ‘nuclear option’

Watching senators’ arguments on Judge Neil Gorsuch’s confirmation and on the deployment of the filibuster and nuclear option reminds us how disingenuous politicians can be. Whether you favor Gorsuch or not, support keeping the filibuster or not, the talking points on both sides demonstrate how intellectually dishonest both Democrats and Republicans have become.

Republicans claim a filibuster is unprecedented. Well, refusing a vote on Judge Merrick Garland for almost a year was the ultimate filibuster, really strong-arm politics beyond the pale. Inarguably, that action pushed one step closer to the situation in which we find ourselves.

Liberals claim Gorsuch doesn’t “represent” all Americans. That’s actually a good thing. Judges don’t represent anyone; they interpret the law. They are there not to represent the majority but the minority (politically speaking) and to vindicate the rights of those who haven’t won in the political process.

Conservatives (Sen. Ted Cruz of Texas for one) argue that you can tell liberal justices don’t care about the Constitution because they rule in favor of the government on issues such as guns and campaign finance limits. Sigh. The Constitution is designed to protect our rights, in part by dividing power. However, determining precisely what the Constitution protects, what limits are put on the protection and who has power to decide outcomes do not lend themselves to such simplistic argument. Were Justice Clarence Thomas and Chief Justice John G. Roberts Jr. against “freedom” because they dissented on gay marriage or find no protection of privacy that includes the right to abortion? Who is the one with the protected rights in Hobby Lobby — the corporation or the women? Liberals are protecting the “little” people when they, for do example, want to retain the Voting Rights Act in its totality, while conservatives think the wronged parties are the states who cede control of their voting processes. Watch out for people arguing that only the other side is unprincipled or anti-constitutional.

Follow Jennifer Rubin's opinionsFollow

Liberals claim Gorsuch is a wide-eyed radical, favoring corporations. For this they rely on a handful of cases among the 2,700 he has ruled upon and ignore the glowing recommendations of numerous liberal legal scholars and former Obama officials. You wish they’d just fess up: Gorsuch is a really good judge but we cannot get over “losing” the seat when Garland was denied a vote. That would be both accurate and fair.

Democrats insist the GOP president should have consulted with them and picked a consensus candidate. Um, that hasn’t been the practice of any president in recent times. The president can choose whomever he likes; the Senate can confirm or not.

Liberals say President Trump should change the nominee, which essentially says that the minority gets a veto over any nominee. Neither side thinks that is right.

Senate Majority Leader Mitch McConnell (R-Ky.) says it is Democrats who are blowing up the Senate. Wait a minute. Does anyone honestly think he didn’t light the fuse by blocking action on Garland?

Liberals claim this all started with McConnell. But that’s not fair considering then-Senate Majority Leader Harry Reid (D-Nev.) started dismantling the filibuster by getting rid of it for lower-court and executive-branch nominees.

You can see why we descended into the current trench warfare. Each side seeks ultimate partisan advantage, cloaking it in high-minded principle. The other side feigns outrage at its opposition for running roughshod over Senate tradition, but then vows to do one better (or worse, depending on one’s perspective) when the shoe is on the other foot. Both sides would have us think the cases that reach the court are easy and without competing legal principles. Gorsuch will wind up on the court and the Senate will get worse. No surprise there.