The moment has come for Chuck Schumer and the Senate Democrats to be or not. They and we have experienced the result of their reasonableness. We live with the result of their appeal to the electorate on that basis. They pointed to the unconstitutional intransigence of the Republicans in their refusal to vet and vote on Judge Merrick Garland, President Obama’s March 2016 nominee for the SCOTUS bench. Not only did the voters say “so what” but implicitly rewarded Mitch McConnell and his caucus for abusing the power they possessed to deprive Obama and progressive America of a pivotal seat on the high court – one the constitution and 227 years of precedent strongly argue was their right.
Time after time the Democrats have been accommodating and reasonable and gotten little or nothing in return for their weakness. By wielding power the Republicans have achieved precisely what they desired.
When President Bush 43 nominated Samuel Alito, the Democrats, then led by Harry Reid, were fully aware what a catastrophe a young Alito would be. Alito far more than Antonin Scalia is the type of jurist Neal Gorsuch is and will be on SCOTUS.
The Democrats lost their spine with Alito. Like Gorsuch, he was well-mannered, spoke modestly and with self-deprecation. Like Gorsuch, he had a prim and proper wife, who sobbed theatrically during the hearings when a Democratic Senator asked hubby a hard question. After that the Democrats folded while mumbling something about not wanting to alienate the Italian-American vote. On a similar subject, consider how pissed at Republicans Asian-American voters would have been had President Obama nominated his real first choice last March – Judge Padmanabhan “Sri” Srinivasan.
Srinivasan like Judge Gorsuch had been unanimously confirmed by the Senate for his circuit court seat. He like Gorsuch is 49 and his nomination and the inevitable Republican stonewalling would have delivered an overwhelming advantage to the Democratic presidential candidate. So Obama went with the more reasonable choice (only in the sense of seeming more acceptable to Republicans) producing minimal voter backlash.
Indeed, two of the liberal icons on the court, Ruth Bader Ginsburg and Stephen Breyer are product and parcel of the Democrats self-destructive reasonableness. Bill Clinton’s real first choice in both those instances was former Arizona Governor Bruce Babbitt, a true progressive as contrasted with the socially liberal but economically centrist Ginsburg and Breyer. When Clinton nominated them, the Republicans privately laughed and sighed relief. They now cite those two justices and their relatively comfortable confirmations (though inapposite) as examples of what they expect of the Democrats with Judge Gorsuch.
This time the Democrats must muster 41 of their 48 to sustain a filibuster of the Gorsuch confirmation. The likely defectors will come from among the ranks of Democratic Senators in West Virginia, Missouri, North Dakota, Indiana and Montana, all standing for reelection in 2018 and from states which went for Romney and Trump. Democratic Senators from Michigan, Pennsylvania and Florida, states that went for Trump, may also defect. Ohio and Wisconsin went for Trump as well, but Sherrod Brown and Tammy Baldwin will never fold.
The Republicans can and may invoke the “nuclear option” reducing the now 60 vote requirement to a simple majority, and if they don’t do that this time they might with the equally right wing jurist Trump would nominate if Gorsuch is blocked. And if they do that they soon will regret it, as the vile and dangerous Trump presidency seeds and hastens their future minority party status. Or in response to a successful filibuster of Gorsuch, Trump could nominate a more centrist judge – a mild conservative in the mold of mildly liberal Merrick Garland. Either result will produce short term and long term wins for the Democrats. But Chuck, failure to show up this time and for this fight will be inexcusable and not forgiven.