Monday, April 10, 2017

Senate Democrats Show Strength, Liberal Pundits Show Weakness

by Neil H. Buchanan

And now Judge Gorsuch is Justice Gorsuch, completing the successful scorched-earth maneuvering by Senate Republicans to move the Supreme Court even further to the right.  May God have mercy on Mitch McConnell's soul (if He can find it).  As bad as this is, it is not a surprise.

What is surprising is that the Senate Democrats actually figured out a way to make a few good things happen in the midst of this yearlong travesty, even though they knew that they would lose the ultimate battle.  Somewhat more surprisingly, Democratic politicians were actually more savvy than the left-leaning pundits this time around.

Typically, Democratic politicians have been reliably unreliable, refusing to take principled, united stands even when they have the votes as well as the merits of the issues with them.  (See, e.g., the Public Option.)  And it is the liberal punditocracy that steps forward to tell them to get a clue.

Not this time.  When Democrats were discussing the possibility of filibustering the Gorsuch nomination, daring the Republicans to "go nuclear," many liberal commentators (including Stephen Colbert) snarked at the Democrats for trying to do something but ultimately failing.  But that was an easy, cheap shot.  The same commentators who mocked the Democrats for bothering to filibuster, after all, could just as easily have mocked them for not even trying: "Look, Democrats, I know you're out of power, but do you have to look so weak?"

Most importantly, there was surprising acceptance among prominent writers on the left side of the political divide that Senate Democrats were in no position to complain, because after all there really was a history of equivalent bad behavior on the Democrats' part.  "They all do it" became a background story to the Gorsuch fight.

False equivalence is infuriating in all of its many guises, but the idea that the rejection of Robert Bork's nomination to the Supreme Court by a bipartisan group of 58 senators in 1987 somehow justifies the Republicans' subsequent behavior in the Senate stands out as one of the most dishonest readings of history in current U.S. political discourse.

One liberal commentator, New York Times columnist David Leonhardt, wrote that the "both sides do it" narrative "is not exactly wrong," because "Democrats have engaged in some nasty judicial tactics over the years. Most famously, they blocked the highly qualified, and extremely conservative, Robert Bork from joining the Supreme Court in 1987."

Ultimately, Leonhardt came down in favor of the Democrats' use of the filibuster against Gorsuch's nomination last week, but this is a perfect example of the kind of polite academic dithering -- "To be fair, we must admit ... ," "Viewed in the most favorable light, this is not exactly wrong." -- that we can no longer afford in the light of Trump's assaults on truth and normal discourse (and decency).

Similarly, the editorial board of The New York Times wrote:
"Some of the blame rests with the Democrats. Many of them over the years have played to their base by casting cost-free votes against Republican nominees. Republicans like to say that Democrats’ 1987 blocking of Robert Bork marked the beginning of the politicization of Supreme Court nominations, but Democrats did give Mr. Bork a vote."
At least they gave him a vote?  While that is important and true, it fails to challenge (and thus implicitly endorses) the baseless claim that Democrats "politicized" the court by voting against Bork, when in fact Bork's hearings and the Senate's debate on his nomination were the very model of "advise and consent" that the Constitution requires.  "He's a prominent academic, and the president nominated him" was no longer going to be sufficient to deem a man qualified to sit on the high court.
If the Bork hearings did not exist, Republicans would have to invent them.  Check that.  The Republicans did invent the Bork hearings, and many liberals have been fooled ever since.  At these completely mythical hearings, a good man was hounded for being conservative, taken down by men who refused to listen to his reasoned defenses of his completely unobjectionable judicial philosophy.

What is surprising about seeing Leonhardt and The Times's editorial board getting this so wrong is that their very own Supreme Court expert, Linda Greenhouse, published a recent column in which she discussed the Bork myth, mentioning among other bizarre moments Bork's defense of his view (as "a matter of plain arithmetic") that rights are a zero-sum game.
Greenhouse also linked to a 2013 column ("Robert Bork's Tragedy") in which she described in detail the fair, searching hearing that the Senate gave Bork's nomination.  The only way to describe what happened to Bork as "politicizing" the hearings is to say that the Senate has no business asking about a nominee's views at all.
On that topic, Greenhouse also points out that there is a subsidiary myth that Justice Ruth Bader Ginsburg refused to give substantive answers during her confirmation hearings, which supposedly justifies Gorsuch's farcical nomination hearings last month.  That is not what happened at all.

And it is not as if this is the first time that people have tried to set the record straight on the Bork myth.  Back in 2001, John P. MacKenzie wrote in the Washington Post: "Here is news to many who were not there in 1987 when the Senate rejected Robert Bork for the Supreme Court: Character assassination, smear tactics or dirty tricks did not defeat the nominee. He beat himself."
For many of us who were watching at the time, the hearings were positively thrilling.  It was a real-time civics lesson in which important men grappled with large questions about how the government should work, and how to put make the Constitution's promises real.  Most significantly, it was not a foregone conclusion.
I can see how an extreme conservative would be disappointed that Bork's nomination was voted down.  They would not be likely to recall the hearings as "thrilling," given the outcome, but the man and his defenders had more than enough opportunity to defend and explain his views.  He simply lost.

This, by the way, made the 1991 hearings on Clarence Thomas even more disillusioning, because in only four short years, the Republicans had figured out how to subvert the hearings on an even more unacceptable nominee into a foregone, partisan conclusion.

All of which brings us back to the current Senate Democrats and their limited arsenal in dealing with Senate Republicans.  The left-leaning editorial boards of both The New York Times and the Washington Post chided the Democrats for filibustering Gorsuch's nomination, arguing essentially that they should have preserved the filibuster for later use.

In a recent column, William Haussdorf exposes the inanity of that argument, especially the idea that there might be a future court nominee who will be so terribly unqualified that Democrats will wish that they still had recourse to the filibuster.
If there are any Republicans who have some limit to how much they are willing to flush their integrity down the tubes, they will have an opportunity to take a stand when Trump nominates Steve Bannon or Rick Perry to the Court.

But the bigger point is that Senate Democrats had a choice.  They could have said: "Oh, gee, we only have 48 votes, so we know we're ultimately going to lose, one way or another. Why even try?  Let's try to get along with our good friends across the aisle."  Instead, they forced the Republicans to show that they have no principles and are willing to burn down the Senate in the service of their partisan agenda.
This clears the fog around any future nominations.  One way or another, the Republicans were going to do this, so why not make it happen in a very high-profile way?  Forcing the Republicans out into the open is no small victory.  Going forward, even the deeply committed "let's all get along" pundits cannot seriously believe that the Republicans are not simply going to take what they can get.

As a bonus, Democrats were also treated to the public exposure of supposed moderates like John McCain and Susan Collins for their fraudulent commitment to Senate traditions.  This was yet another case in which those two -- in fact, any combination of two self-styled moderate Republican senators, and more if the three Democrats who voted for Gorsuch had held to their votes -- could have cast consequence-free votes against Trump and the extreme right-wing agenda.

Collins, for example, joined with Lisa Murkowski to vote against confirming the astoundingly unqualified Betsy DeVos as Secretary of Education.  All that did was cause Vice President Pence to have to cast a vote.  Who doubts that he would have done so on the key procedural votes and confirmation vote for Gorsuch?

But now, John McCain is on record both as saying that anyone who thinks getting rid of the filibuster is a good idea "is a stupid idiot" and then voting to end the filibuster.  Susan Collins said that she did not want to change the rules of the Senate, but she fell in line.
Neither of them could even muster the courage to say to McConnell and Trump: "You both know that my vote won't change anything, so don't worry that I'm taking a public stand.  I get to save my public image, and you still get your man."

McCain and Collins now both look like craven hacks.  I am betting that they do not like to look like craven hacks.  They might now try to look for ways to look less like craven hacks by showing real spine in the future.  Or maybe not, but at least they were forced to show their willingness to bow down before Trump on a high-profile vote.

As I argued shortly after the election, the Democrats are in a desperate situation, and desperate times call for desperate measures.  Inevitably, that means picking fights that they will lose, both to show voters that they actually stand for something and to find strategic advantages where they can be found.

Even so, I expected Senate Democrats ultimately to cave on the Gorsuch nomination.  They did not.  I did not expect liberal-ish pundits to fall for the Bork myth or to mock Senate Democrats for losing, but they did.  I do not know if this is a harbinger of things to come, but it certainly is a big change from what we have become accustomed to seeing.


Shag from Brookline said...

Well before the Bork hearings I had read his "The Antitrust Paradox" which challenged the state of antitrust law at the time of its publication in 1978 as it had developed particualary under the New Deal. I had been immersed in antitrust law as a general practitioner a few years earlier for a corporate client. Bork's goal was to change that. With the Reagan Administration in place in 1981, there was less and less antitrust enforcement. Bork's nomination was aimed at destroying antitrust law. Senate Democrats had to oppose Bork for this as well as Bork's other stances that were anti-New Deal. As I recall, the matter of the originalism movement was not on the front burner at the Bork hearings. The senate vote had elements of bi-partisanship. Bork's writings and his statements during the nomination process doomed him. Apparently this served as a lesson for subsequent nominees. With Judge Gorsuch,'s nomination, I think the actions of Senate Democrats were appropriate.

Joseph said...

Ultimately, Leonhardt came down in favor of the Democrats' use of the filibuster against Gorsuch's nomination last week, but this is a perfect example of the kind of polite academic dithering -- "To be fair, we must admit ... ," "Viewed in the most favorable light, this is not exactly wrong." -- that we can no longer afford in the light of Trump's assaults on truth and normal discourse (and decency).

You suggest in that passage that intellectual honesty ("polite academic dithering") should be replaced by a war mentality. However, you then appear to argue that the common conception of the Bork rejection is simply wrong as when you write of "the baseless claim that Democrats 'politicized' the court by voting against Bork." I recognize that you would draw a distinction between intellectual honesty and polite academic dithering...but in so admitting I am engaging in the polite academic dithering you abhor. At least: recognizing what is true in another's argument and then explaining why your argument is nonetheless winning is far more persuasive.

As I understand it, the kind of scrutiny Bork received was a marked break with tradition that politicized the process in a way theretofore unseen, however justifiable one might view it. (I would be surprised if you were to argue that Bork was the first in history meriting such scrutiny.) You also elide the break with tradition Ginsburg provided, although again arguably justifiable, perhaps in light of the Bork rejection.

I think there are good arguments about the process and the politics of judicial nominations, some Prof Dorf has offered, or simply the idea that we need to stop the tit-for-tat. We might even look at historical events with modern eyes and see merit in what happened. But I don't think "we can't afford" to make certain arguments is right. It is useful for rallying the troops in order to play the same hardball politics Mitch McConnell has and to continue the back-and-forth.

Joe said...

The op-ed that tossed in one "both sides do it" tidbit (did his editor require it?) while still supporting the filibuster was annoying. As noted, Bork is not the same thing. The people who talked about Dems (or "Harry Reid" as if ONE person alone voted to change the rules -- or however you explain the technique explain what was done*) "shooting themselves in the foot" in 2013 without provided backstory deserve to suffer one or two of the plagues of Egypt (happy Passover).

I would also toss in that Democrats -- in a lesser cited maneuver -- asked for debate to at least be extended past the current two week recess. The so-called moderate Republicans could have supported that as a sign of good faith in Senate comity. It wouldn't have mattered much -- at most a few decisions late in the term. But, it would have been a small signal. The Republicans didn't do it. Trusting these same Republicans later to vote with Democrats to allow a filibuster is a fool's game.

"Democratic politicians have been reliably unreliable, refusing to take principled, united stands even when they have the votes as well as the merits of the issues with them. (See, e.g., the Public Option.)"

I have mixed feelings about this one. I think they should have at least put that up to a vote. But, by one count, there were over ten conservative Democrats in the Senate at the time. There were also many in the House. So, it is unclear to me that they actually had the votes though yes that would have been a principled stand even if a few conservative Democrats had to compromise [as the more liberal Democrats did on various things to get their votes] to go along with 2/3 or more of their caucus.


* At least one person told me that the rule was not really changed, it was just interpreted in a certain way. Whatever. It looks to me that they changed the rule.

Joe said...

"the kind of scrutiny Bork received was a marked break with tradition"

Past judicial nominees to the Supreme Court received strong scrutiny by a Senate with ideological disagreements with the President, including defeating the nominee.

Not sure, e.g., how Fortas was different from Bork in relevant part. Fortas is also an example of the President ill-advisedly, in a weak position politically, nominating an ideological option that was bound to cause a lot of problems.

The usual nomination does not bring forth such a negative reaction because more of an effort is made to avoid a battle. Sometimes the battle was avoided because both the Senate and the President are of the same party.

As to Ginsburg, her public comments regarding Trump did break a tradition & in time she apologized for her comments. I noted at the time that I thought she made a mistake. There was a mitigating factor there, of course, since a long term public figure would logically be appalled at some so not credible would actually win. But, yes, she was wrong to do that & she took her "Notorious RBG" rep a bit too far there.

David Ricardo said...

What doomed Bork was not partisan politics but his position on Griswold, particularly his adamant statements that it was a very poor decision not grounded in law and his condescension and redicule towards the principle of privacy. His view that a state could prohibit or restrict access to contraception was so radical, so contrary to public policy and such an endorsement of the right of government to enter private lives that his position was unacceptable to a large part of the voting public. He lost political support.

Post nomination statements and activities by Bork only confirmed that his rejection was one of the great Senate accomplishments of the last half of the 20th centure.