This week, the confirmation hearings for Merrick Garland’s stolen Supreme Court seat have begun. Neil Gorsuch has done his best to strike the tone of a traditionalist judge — above politics, wholly objective, wholly independent — but even if we might normally buy it, many of us on the left are still (justifiably) bitter about Senate Republicans’ childish dereliction of duty in 2016.
With that lasting animosity and the growing swirl of corruption surrounding the Trump administration, it’s hard for any of us to trust Gorsuch’s independence or objectivity. To use a legal term, he feels like fruit of a poisoned tree, so Democrats have come out swinging. Gorsuch has been asked about whether he would rule against the president who nominated him, whom Dick Durbin referred to as a handful. He has faced tough questions about how his personal conservatism might interfere with issues like abortion and gun control, and he largely declined to answer them. His role in the Bush administration’s torture practices and his views on Merrick Garland have been addressed.
It has not been a kind hearing. Gorsuch himself has complained about it, saying he regrets putting his family through it. And he’s not the only one who resents it — Lindsey Graham, Ted Cruz and Donald Trump himself have all expressed the view that any Democratic holdup of the proceedings is nothing more than a political hit job. Trump has advised that he is prepared to tell Senate Majority Leader Mitch McConnell to “go nuclear.” Graham, traditionally more moderate, has merely said that Democratic obstruction would mean they are “all about politics.” Cruz, on the other hand, has decried Democrats’ “unprecedented partisan obstruction.”
Leaving aside the bizarro world Cruz lives in, a world in which he did not become a household name by shutting down the government with a 21-hour marathon of partisan obstruction, these comments are obviously laughable because of the 293-day dangling of Merrick Garland at the end of the GOP’s rope. Democrats are not apologetic, given that simply having confirmation hearings at all is a step further than Republicans were willing to go for Obama’s appointee.
Democrats often pride themselves on nobility — “when they go low, we go high” was a rallying cry during the 2016 election. And as we can see from the comments above, Republicans seem to acknowledge this by expecting some loftier standard of adulthood from Senate Democrats than they themselves have ever cared to extend. It’s an opinion that has been expressed left and right since Nov. 8: Democrats should not sink to Republicans’ level. They should be the bigger man and work with Trump the way the GOP refused to work with Obama.
To a certain extent, I agree. Democrats can’t — and shouldn’t — fight every battle. If Trump or the congressional GOP comes up with a plan to help people that Democrats think might actually work, they should back it. Likewise, if he nominates a justice who isn’t violently objectionable, they should probably at least have confirmation hearings.
But that doesn’t mean they need to go easy. As Gorsuch pointed out, former Justice Byron White had a confirmation hearing that lasted only 90 minutes — but that’s not exactly average. White was confirmed in ’62, and judicial confirmation hearings are getting longer — Elena Kagan interviewed for three days during her hearings. Democrats are not dragging this out any longer than that, so far.
But they should. Trump is unprecedentedly unpopular, and, as Senate Minority Leader Chuck Schumer pointed out, currently under investigation from the FBI for his ties to Russia. Democrats should not be taking him like he’s a normal president — in that way, the situation is completely different from eight years ago. Obama was normal. Trump is not. More than ever, we need a check on the executive branch, and if congressional Republicans are unwilling to provide it, then it falls to the Democrats.
Gorsuch is a product of the Trump administration. That means he needs extra scrutiny. He should be asked tough questions. His hearing should be thorough. Democrats are not being childish to be exacting with a position a 49-year-old will hold for what could be the rest of his life — particularly not when that 49-year-old has expressed some concerning positions and decided some controversial issues in ways that could seriously hurt people in their base.
More pertinently, they aren’t required to be the adult in the room all the time. If Republicans have proved anything in the last eight years, it’s that being difficult works. They have a majority in most state legislatures, both houses of Congress, they have the presidency, and a majority of governorships. They’ve done an extraordinarily successful job of blocking the sitting president at every turn — even when they didn’t hold a majority in Congress. They threw a heels-dragging, fists-flailing temper tantrum over Garland’s seat and are now getting to maintain the conservative majority on the court with Gorsuch, whom I fully expect to be confirmed.
Republicans have written the Democrats a playbook for pointless obstructionism. Now that Trump’s abnormality has given Democrats a hundred reasons to resist, it seems only fair to follow it when his bumbling idiocy or outright malice makes it necessary.
When Republicans put forth a healthcare bill that will pull the rug out from under 24 million people, the Democrats should throw a tantrum. When Trump nominates a man with a history of racism to be attorney general or a woman whose incompetence is nearly blistering to be secretary of education, they should be digging their heels in.
Will the GOP stop complaining about it? Probably not. But Democratic complaining didn’t stop them for the last eight years. I don’t see why it should now, when the roles are reversed.
Democrats shouldn’t throw fits over nothing. But if there’s a fight that should be picked, they can’t let Ted Cruz scare them out of picking it.