This morning in my inbox, I found emails from half a dozen progressive organizations I support, all urging me to send money to help them oppose President Trump's nomination of Neil M. Gorsuch to the Supreme Court. I may write a few checks, but my own inclination is that Democrats and other progressives should not mount an all-out campaign against the Gorsuch nomination.
Why not? After all, Judge Gorsuch is being nominated to a seat that was, in essence, stolen from President Obama by the Republicans who control the Senate. With nearly a year left in his presidency, Obama tossed Republicans an olive branch, nominating Merrick Garland, a highly qualified centrist, to the Court. But the Republicans played politics, unprecedentedly refusing even to hold hearings on the Garland nomination. Their justification -- that the next Justice should "be determined by whoever wins the presidency" in November -- was undermined by, among other things, hints from the Republican camp that they would reject any nominee put forward by Hillary Clinton if she were elected.
The Republican gambit payed off when Donald Trump was elected president. For Democrats to roll over now, with an opportunity to fight back by opposing Judge Gorsuch, might seem like the definition of weakness. As New York Times columnist David Leonhardt puts it, "The only thing worse than the system that the Republicans have created
is a system in which one political party volunteers to be bullied."
I don't think the Democrats should volunteer to be bullied. But you don't pick a fight against a schoolyard bully when you know you're going to lose, and when there's not much at stake to begin with. You pick a fight when there's something important worth fighting for -- and, ideally, when you've got a chance to win it.
There's no question that Neil Gorsuch is a doctrinaire judicial conservative in the mode of Antonin Scalia, the Justice he'd be replacing. As I've written in my academic work, the all-encompassing, single-minded originalism endorsed by Scalia and Gorsuch is indefensible as a methodology of constitutional interpretation and typically serves as a cover for the imposition of a judge's conservative political views. But it's unlikely that Gorsuch will move the Court appreciably farther to the right than it was before Scalia died. Essentially, Gorsuch for Scalia is a one-for-one trade -- a disappointment for progressives, who had hoped for a moderate-left majority on the Court, but hardly a disaster. Given the demonstrated capriciousness of President Trump, we could have done much worse. And since Republicans currently control the Senate, any concerted resistance by Democrats to the Gorsuch nomination almost certainly would be futile: Republicans could simply modify Senate rules to prevent a Democratic filibuster.
The real disaster would be a far-right Trump appointment to fill a second vacancy on the Court. If Gorsuch is confirmed, the Court will lean to the right, as it has at least since George W. Bush's appointment of Samuel Alito in 2006 (and arguably since Bush pere's appointment of Clarence Thomas in 1991). But Justice Anthony Kennedy presumably will still cast the swing vote in many high-profile cases, sometimes siding with the four moderate-liberal Justices as he frequently has in the past. Only if Kennedy, or any of the Court's four moderate-liberals, leaves the Court do we stand on the edge of a cliff. A Trump appointment to replace any one of these five -- Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, or Elena Kagan -- would tip the Court to a solid conservative majority, perhaps for decades.
My worry is that a no-holds-barred fight against the Gorsuch nomination now -- one Democrats and progressives are likely to lose -- would drain political capital that could be spent on opposition to the next Trump appointment. Democrats could be branded as obstructionists (a bitter irony, but a real danger in today's political climate), and the troops could lose faith after fighting a losing battle. Funds spent in vain to oppose Gorsuch might not be so readily donated again to fight the next nominee. And, perhaps worst of all, a concerted campaign against Gorsuch is likely to distract Democrats and progressives (not to mention the general public) from the many other urgent political and legal battles that must now be waged in the Trump era, from immigration to civil rights to the environment.
Of course, keeping our powder dry for the next fight does no good if the next fight, too, is unwinnable. But remember that the midterm elections arrive in less than two years. If Republicans in Congress continue to support the Trump administration, there's a real possibility that they will lose large numbers of seats in both houses of Congress. It's unlikely that the Democrats can regain control of either house, much less both of them, in 2018: In the Senate, most of the seats to be filled in that election already belong to Democrats, and in the House, gerrymandering has made it difficult for Democrats to take back large numbers of seats. But even significant Democratic gains could shift the political climate considerably post-2018, making Senate Republicans wary of endorsing a far-right or otherwise non-mainstream Trump nominee. If a Court vacancy occurs after the midterms, an all-out progressive campaign against such an appointment might actually have some traction.
And event if the odds are stacked against us, Democrats and progressives will have no choice but to strongly oppose a Trump nominee to fill a second Court vacancy (assuming, of course, that Trump doesn't pull one of his patented volte-faces and nominate a liberal). That nomination will simply matter too much. The Gorsuch nomination, in contrast, is unlikely to change the Court's decade(s)-long right-tilting status quo.
Of course, I'm no political strategist. But my strong sense is that progressive groups and Democrats on the Hill should softpedal their opposition to Judge Gorsuch. There are bigger fish to fry, now and in the foreseeable future.
That doesn't mean Senate Democrats should affirmatively endorse Gorsuch, or even vote in favor of his appointment. How to vote strikes me as a tough call. At least one progressive lawyer whose judgment I respect has vouched for Judge Gorsuch's character and temperament, predicting that as Justice he would uphold the rule of law -- an important criterion given the Trump administration's apparent disregard for that central democratic value. There is no doubt that Gorsuch's legal credentials are outstanding (although the appointment of yet another Harvard Law grad would only perpetuate the troubling dominance of Ivy Leaguers on the current Court). And as I mentioned above, an alternative Trump nominee might be much worse from the progressive perspective. On the other hand, Gorsuch's dogmatic originalism is (in my view) an illegitimate constitutional methodology that promises to generate extremely conservative results under the guise of impartial judging. And there is the nagging fact that Judge Gorsuch's potential seat on the Court should have belonged to Merrick Garland.
If I were a Senate Democrat, I think my starting point would be mild but open-minded opposition to Judge Gorsuch's nomination. I'd be likely to vote against him but open to persuasion in the other direction. If I sat on the Judiciary Committee, I certainly would question him, politely but aggressively, about his views on constitutional and statutory interpretation, the role of precedent, the independence of the judiciary, and the rule of law. If I became convinced that Judge Gorsuch would not seek to overturn precedents on originalist grounds and would uphold the rule of law against the Executive Branch, I might give him my vote.
But I don't think I would join an all-out effort to derail his nomination. Such an effort almost certainly would fail -- and there are more important battles to fight.
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