Democrats Need A Unified Approach To Gorsuch Nomination

I got some pushback on my post yesterday about Dianne Feinstein essentially accepting the GOP narrative about Merrick Garland. My point, which I did not make clearly enough or explicitly enough, was more about the Democrats’ inability to frame things in a way that can help them. I have written many times about how the Republicans always manage to frame an issue far better and with more consistency than Democrats. Now that Democrats have no levers of power, they need to learn those lessons quickly.

Rachel Maddow had David Leonhart from the NY times on last night to discuss the article he wrote yesterday. In that article, Leonhart laid out the message that every Democratic Senator needs to play from on the Gorsuch nomination. Says Leonhart, “It’s important to remember just how radical — and, yes, unprecedented — the Senate’s approach to the previous Supreme Court nominee was…The refusal was a raw power grab. Coupled with Republican hints that no Hillary Clinton nominee would be confirmed either, it was a fundamental changing of the rules: Only a party that controlled both the White House and the Senate would now be able to assume it could fill a Supreme Court vacancy…Democrats should not weigh this nomination the same way that they’ve weighed previous ones. This one is different. The presumption should be that Gorsuch does not deserve confirmation, because the process that led to his nomination was illegitimate…Democrats simply cannot play by the old set of rules now that the Republicans are playing by a new one. The only thing worse than the system that the Republicans have created is a system in which one political party volunteers to be bullied.”

While I may not agree with some of the other points he makes in his article, these are the key points Democrats need to make over and over. If Democrats feel Gorsuch is too extreme and do not give him enough votes to cross the 60 vote margin, it will be Republicans who will be making another unprecedented power grab by invoking the nuclear option. The GOP has already broken the process for approving a Supreme Court judge. Using the nuclear option would break the process permanently and McConnell and the Republicans need to be made to own it. That requires unified messaging from Democrats.

In addition, any time a Republican Senator says something along the lines that “the people spoke in  the last election and they chose Donald Trump and therefore, Trump should be able get his nominee approved”, the Democrats should point out that, yes, the people did speak and they gave 3 million more votes to Trump’s Democratic opponent and 10 million more people voted against Trump than voted for him. In fact, the will of the people has been thwarted twice by Republicans in regard to the Court. Once, by refusing to allow Obama’s nominee to even get a hearing and now by ignoring the will of the majority of voters in the last election. If Republicans really want to honor the will of the people, they should get Trump to nominate Merrick Garland again.

The Gorsuch nomination is also a chance to attack the bogus Federalist Society spin about an “originalist” reading of the Constitution. An originalist reading of the Constitution shows that the drafters of the Constitution envisioned that the document would conceivably protect many more rights in the future than they enumerated. It was the recognition of that fact that led to the “equal protection” clause in the Fourteenth Amendment. Does Gorsuch agree with that? Where in an originalist reading of the Constitution is a corporation afforded the protections of the First Amendment? Where in a orginalist reading of the Constitution does it say the certain (wealthy) people are entitled to more free speech than others? And Democrats should never allow Gorsuch to dodge a question by saying he refuses to comment because he might have to rule on the issue. The easiest way to do that is tom make him explain his prior decisions, which provide plenty of ammunition. And don’t let him get a pass on his youthful fascination with fascism and his admiration for war criminal Henry Kissinger and his statement “the illegal we do immediately, the unconstitutional takes a little longer”.

Finally, it might have been nice if Leonhart and the Times had spent a little more time pounding away at this unprecedented power grab by Republicans during the campaign. Perhaps they should focus on the other extreme threats to our democracy. If we get to the 2020 election, which, incredibly, is not a sure thing, what do they think will happen to this country if Trump squeaks by again in the Electoral College while losing the popular vote by millions again.