The Gorsuch test: Can Democrats afford the politics of revenge?

The nomination of Judge Neil Gorsuch has created a dilemma for Democrats bent on resisting Trump. Many still smart over the GOP's 'theft' of Obama's choice for the Supreme Court. Others say it's better to be constructive, not petty.

Alex Brandon/AP
Supreme Court Justice nominee Neil Gorsuch, left, is greeted by Sen. Joe Manchin (D) of West Virginia as Judge Gorsuch arrives for their meeting on Capitol Hill, Feb. 1, 2017.

Since the day President Trump was inaugurated, Democrats have backed a strategy of full-bore resistance: the women’s marches, protests against the travel ban, and in the Senate, boycotts of some committee votes on the president’s cabinet nominees.

Now that resistance is bearing down on his Supreme Court choice.

In Congress, the strategy is reminiscent of GOP obstruction during the Obama administration, and it raises the question of where this will lead.

Will it result in more dysfunction, or will it be a valuable check on what Democrats – and some Republicans – see as a loose-cannon president? Will Democrats pay a political price, or will they be rewarded?

Some Democrats, such as Sen. Chris Coons of Delaware, are very concerned about an arms race of obstruction, fueled in part by a politics of revenge.

“If all we do is continue to exact a pound of flesh from each other, we will eventually strip our republic bare to the bone,” Senator Coons said at a Wednesday morning gathering with reporters to talk about Mr. Trump’s nomination of Judge Neil Gorsuch.

“It is of course only human to want some revenge for this unprecedented theft,” he said, speaking of the refusal of Republicans to even hold a confirmation hearing for former President Obama’s own nominee, Merrick Garland, after the death of Justice Antonin Scalia nearly a year ago.

That led to the longest wait for a nominee in Supreme Court history – 293 days, according to Reuters. The nomination officially expired on Jan. 3, 2017, when the new Congress convened. (Editor's note: This story was updated to clarify that it was the longest wait for a nominee, but not the longest vacancy on the court.)

By telling reporters that Judge Gorsuch should get a thorough hearing and a vote in the Senate Judiciary Committee, Coons has incurred the wrath of progressives in his party.

“This is NOT what Democratic backbone needs to look like,” read an email by the Progressive Change Campaign Committee Wednesday. The political action committee instructed its 1 million members to call the senator from Delaware and tell him “to FIGHT – not to normalize” Trump and his nominee.

Coons, who sits on the Judiciary Committee where Gorsuch will eventually appear, went on to say at the morning gathering Wednesday, however, that the challenge is “not to act in petty ways, but to try and act in more balanced and constructive ways.” It is a repeated theme from Coons, who has a masters degree in ethics from Yale Divinity School.

There’s no question that retaliation plays a role in Democrats’ handling of the Gorsuch case, though how much of a role is not clear.

Trump urges 'nuclear option'

On Monday, Sen. Jeff Merkley (D) of Oregon said he would demand that the Senate clear a 60-vote threshold for confirmation – before he knew who the nominee would be. He said anybody other than Judge Garland was unacceptable. On Wednesday, Sen. Charles Schumer of New York, the minority leader, backed the 60-vote requirement, a margin that facilitates a filibuster.

The filibuster has been used only once against a Supreme Court nominee in modern history. That was in a failed attempt by Democrats to block Samuel Alito in 2006. Today’s Republicans, with their slim 52-48 margin, would need eight Democrats to confirm Trump’s nominee for a lifetime appointment to the high court.

Trump has urged Senate Republicans to unilaterally do away with the filibuster for Supreme Court nominations, deploying the so-called “nuclear option” and making the nominee’s approval subject only to a majority vote. Many senators in both parties are loath to do that, as it would strip away unique rights that the Senate gives to the minority party.

Coons’s Democratic colleague from Delaware, Sen. Tom Carper, disagrees with the idea that revenge is the motivator for opposing Gorsuch. But that understates the feelings among many Senate Democrats, say others.

“Not everyone’s going to make that argument publicly, but many feel it privately,” says Jim Manley, former spokesman for Sen. Harry Reid, the Nevada Democrat who retired after the November election. In 2013, as majority leader, Senator Reid unilaterally did away with the 60-vote threshold for all presidential nominations except to the Supreme Court. The party is paying for that now as the Senate so far has cleared Trump's cabinet nominees, despite Democratic pushback.

The treatment of Garland last year is “very visceral for many Democrats,” Mr. Manley says.

Appeal to base, or swing voters?

They saw Republicans “craft an argument out of thin air” to deny Mr. Obama a nomination, and now they’re asking for deference on their choice, as Manley describes it. He says he’s coming to believe that the Senate may be “truly broken” and that “they need to blow up the place” with the nuclear option.

Manley disagrees with the idea that a strategy of obstruction would hurt Democrats, saying it didn’t hurt Republicans, who won the White House. But he also believes it’s the right thing to do, because of the policies and people that Trump is putting up.

Democratic pollster Celinda Lake agrees, though she says the party needs to adjust its messaging. Tea-party-like blocking tactics might resonate with the base, she says, but resistance alone won’t work for swing voters. They need to have reasons for resistance defined.

“We need to revise the message from ‘resist,’ to the reasons for resisting,” she says. “We have to communicate why we’re full-bore against Gorsuch.” It’s not just opposition for opposition’s sake, the pollster says, it’s because of this appellate judge’s favorable rulings for corporations and unfavorable rulings for women’s rights.

Democrats name as an example his ruling in Burwell v. Hobby Lobby, when he sided with a company that sought a religious exemption to provide contraception to employees.

Not just blanket resistance

Indeed, Democratic senators say they’re not just offering blanket resistance to everything Trump. They point to discreet reasons for opposing some of the president’s nominees – inexperience, unanswered questions, and questionable stock trades, among others.

It’s not clear whether Democrats will be able to muster enough votes to block Gorsuch. Ten Democratic senators from states that Trump won face reelection in 2018, though their Supreme Court vote will be more complex than pure election politics.

One of those Democrats, Sen. Heidi Heitkamp of North Dakota, echoed Coons, when asked in an interview about the tremendous pressure on Democrats to shut down the Gorsuch nomination.

Last year’s GOP blocking of a Garland hearing was “tragic,” she says, but “I’m going to caution people that a Supreme Court nomination should not be an opportunity for retaliation of bad behavior.”

He should go through the process, she says, even if Garland was denied it.

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