posted at 6:24 am on February 1, 2017 by Duane Patterson
Late last night on Fox News, Bret Baier turned on the Special Report lights and broadcast an 11pm special edition of Special Report to talk about the Neil Gorsuch nomination to the United States Supreme Court. Presumably, the main reason was he lined up an interview with Mitch McConnell, the Senate Majority Leader, who is now on the hot seat to get this nomination confirmed in a 52-48 Senate.
McConnell, as expected, praised both Judge Gorsuch and the process in which President Trump conducted the search. He then was pressed by Baier on the 400 pound gorilla in the corner, which is whether the nuclear option, or Reid Rule, will be employed if necessary to get Gorsuch confirmed. The ever-cagey McConnell did not take the bait and show his hand, but instead made this promise. You have to click on the link to watch the clip.
Not once, not twice, but three times, McConnell pledged that this nominee would be confirmed. There’s no wiggle room left here. Tactics will unfold as time takes place, but McConnell left no doubt that he has any expectation other than to see then-Justice Gorsuch seated on the High Court.
A lot of conservatives have had a long history of not trusting or liking the Senate Majority Leader. I have never been one of them, and have never quite understood the criticism. Yes, Republicans in the Senate have let us down on a myriad of issues over the years, for lots of varying reasons, many self-inflicted. But whenever he’s been matched up with his Democratic counterparts on tactics, McConnell has usually had the upper hand. Trust is something that once lost with conservatives, for whatever reason, is hard, if not impossible, to recover, so the image of McConnell as leading the surrender caucus is deep-seated with many.
My counter argument is to look at recent history in order to judge how serious McConnell’s intentions are. With the Merrick Garland appointment by President Obama, the outcome of the election was very much in doubt. We weren’t even sure who the nominee of the Republican Party would be when Scalia passed, much less whether that nominee would be successful against Hillary Clinton in the fall. But McConnell heeded the call of Hugh Hewitt and other legal scholars to hold the line on a No Hearings/No Votes pledge on Judge Garland, whose confirmation would have swung the Court wildly to the left for a generation. McConnell cited Senate history, where you had to go back 80 years to a time when a sitting president in an election year got a Supreme Court pick acted upon, and held the Republicans in the Senate together. Not John McCain, not Lindsey Graham, not Susan Collins, not one of them caved and went along with the Democrats in fear of what the results of the election would be. Only Mark Kirk, the now-departed Senator from Illinois, waffled, but his waffling was in word, not in deed. He never jumped ship on the will of the Senate GOP to hold the pick up. The ability to hold the Republicans together for almost a year is what has now allowed for us to ponder what the Court can now look like with Neil Gorsuch on it.
The left is now crying this is a stolen seat. It’s utter nonsense. The Senate provided advice and consent, which is what the Constitution requires. The Republicans, then in the majority as they are now, advised President Obama that he would not get this appointment, because in an election year, there’s nothing wrong with the American people to consider who should get to make this pick when they cast their vote in November, being it’s a lifetime appointment and all. It was a risky gamble, and Lord knows the election result was certainly not predicted by many on the right. McConnell’s year-long gamble should result in conservatives at least giving credit where credit is due, despite previous angst over immigration, Gang of 8, or whatever policy turned you off from McConnell’s leadership abilities.
Harry Reid tried to at least keep the veneer of separation between lower courts and the Supreme Court when it comes to judicial filibusters, but Reid said if the GOP were to block a Democratic Court pick, he’d use it again. The precedent for its use has been set, and I believe McConnell is fully willing to use if if the Democrats are that short-sided. McConnell is going to simply force the Democrats to walk the plank. Their choice is to lose twice now, or lose once now, and lose again a little later, but at least lose on a future Court nomination that’s in close enough proximity to an election to have something to campaign on with their base.
If the Democrats go to war now against Gorsuch, whom they confirmed on a voice vote 10 years ago for the Circuit Court, that means unanimously, the Reid Rule will be invoked. They will lose the judicial filibuster, and when the next vacancy on the Court occurs, which odds are high of happening before 2018, they will have lost their ability to have any weapon, rhetorical or not, to stop it. With Gorsuch replacing Scalia, the ideological balance of the Court doesn’t change. That’s why it doesn’t make sense to burn the filibuster now if you’re a Democrat. If Anthony Kennedy were to retire, or Ruth Bader Ginsberg, and Trump selects a Thomas Hardiman or Justice Willett out of Texas to replace, that will be ideological thermonuclear warfare for the left. The Reid Rule will still probably have to be employed at that point, but the Democrats will at least be able to cry foul then, Republicans stomping minority rights and all that nonsense, and use the Reid Rule as an excuse, fundraiser, and campaign issue for the mid-terms. Mind you, the filibuster won’t work then, either, to keep another Trump nomination off the Court, but Senate Democrats, who will be facing a very uphill climb in the 2018 mid-terms already, defending vastly more seats in red states than what they faced in 2016, will at least have a rallying cry to use with their base.
In either case, the Democrats do not have a very good hand to play, now or in the immediate future, and McConnell knows it. The hard left base doesn’t understand this, yet, and that’s what’s going to make 2017 so much fun. Democrat stalwarts in the Senate will, because their base demands it, make a lot of noise about Judge Gorsuch, sound and fury as the Bard wrote, and yet not use the filibuster this time on Gorsuch. The base will be crestfallen as the air in the left wing base balloon escapes.
If I’m right, by about this time in April, this will be the mood of the Democratic Party.