The Judiciary

Democrats can’t stand down in Supreme Court fight

Greg Nash

“When we fight…” I yelled into the microphone, starting the call-and-response chant.

“… we win!” thundered back the crowd.

When we fight, we win. That was the chant at protests against the GOP healthcare bill. That was the chant at the protests against Trump’s Muslim ban. And it was the chant at a demonstration opposing Andrew Puzder for Labor secretary. It’s been right every time—and it’s right for the battle to prevent President Trump’s extreme-right Supreme Court nominee, Neil Gorsuch, from filling Merrick Garland’s stolen Supreme Court seat.

That’s not to say that Democrats will necessarily prevail in keeping Gorsuch off of the Supreme Court. It’s to say that fighting with every available tool is the right strategy, morally and politically, for Democrats — and that preemptively conceding defeat would be a sure loser.

There are three crucial reasons why Democrats should hold the line at a 60-vote threshold for Neil Gorsuch, even given the Republican threat of the nuclear option.

{mosads}First, the context. Donald Trump has a 35 percent approval rating and is under investigation by the FBI for possible collusion with a hostile foreign power. Experts in governance from across the political spectrum are gravely concerned that he does not respect the basic norms of American governance. Is this the time to reward his assault on norms by confirming his nominee for a lifetime appointment?


Second, the merits of the nominee. Gorsuch is a far-right, pro-corporate partisan whose elevation to the Supreme Court would advance a fringe ideological agenda at the expense of the timeless American values encoded in the Constitution. He’s Karl Rove in a robe. An examination of his pre-judicial career and his judicial rulings reveals the reason why he went to such lengths to avoid answering any substantive questions during his confirmation hearings: he knows that his views are politically toxic.

His judicial philosophy is of a piece with the thinking that gave us Citizens United, gutted the Voting Rights Act, and let corporations deny birth control coverage to their employees. It’s not enough to leave one trucker to freeze — his approach leaves women, workers and all citizens out in the cold. For Democrats to let Gorsuch float onto the bench would be to abandon their core principles. Opposing Gorsuch — win or lose — is an act of principled leadership.

And third, although this is not a decision that should be driven by politics, there is no political upside to caving in. Allowing Donald Trump and Mitch McConnell to ram an extremist through to a lifetime Supreme Court appointment in order to avoid a fight doesn’t look “reasonable,” it looks craven. Cutting some sort of deal would confirm voters’ worst fears of the Washington swamp. Democrats who roll over for Gorsuch will not win over the support of Republican voters, but they’ll lose the enthusiasm of Democrats. By contrast, Democrats who refuse to compromise their values will earn the enthusiastic support of the constituents most critical to energize — the ones who knock on doors, drive neighbors to the polls, and reach for their credit cards when they see TV ads attacking their champions.

What’s the fear? If Democrats have the power to deny cloture but never use it — even with a nominee this far outside of the mainstream — it’s the same as never having had it at all.

On the flip side, Republicans might blink. And for good reason. Many Republican senators have publicly expressed their preference not to invoke the nuclear option. They should listen to their consciences.

If Republicans choose to be Trump’s agents in changing core rules of the Senate in order to confirm a justice likely to issue a string of partisan rulings that further undermine the public’s confidence in the Supreme Court, they will be damaging all three branches of American government with a single bang of the gavel. They’ll be living with the consequences for the rest of their lives — including under future Democratic presidents.

Nobody is forcing their hands. In fact, there’s a simple solution if they want to confirm a Supreme Court justice without changing the rules: change the nominee. A Merrick Garland-style moderate would sail through the confirmation process. (I hear Merrick Garland himself is still available for the job.)

If Republicans go nuclear to confirm Gorsuch, that will be the fault of Republicans, not of Democrats. If Democrats don’t stand up for their beliefs and their constituents, they lose by forfeit. But if Democrats fight, they hold open the chance that they could win a broadly acceptable nominee — and whether not they get that, they win the moral high ground.

Stand strong, Democrats. Listen to voices of your constituents: When we fight, we win.


Ben Wikler is Washington director of Find him on Twitter at @benwikler.

The views of contributors are their own and not the views of The Hill.

Tags Donald Trump Mitch McConnell Supreme Court of the United States

The Hill has removed its comment section, as there are many other forums for readers to participate in the conversation. We invite you to join the discussion on Facebook and Twitter.

See all Hill.TV See all Video

Most Popular

Load more


See all Video