In the best of all possible worlds, Merrick Garland and Neil Gorsuch would both soon grace the Supreme Court. But, alas, someone like Henry Clay is no longer in Congress to negotiate the Compromise of 2017.
So, dispirited Democrats are left with their choice of frustrating outcomes as they rage against the success of Mitch McConnell’s scorched-earth strategy to deprive Garland of a vote all through 2016.
Of course, the Democrats partly have their own 2016 candidates to blame. Both Russ Feingold in Wisconsin and Katie McGinty in Pennsylvania lost their states by larger margins than Hillary Clinton did. And Evan Bayh blew what was widely regarded as a slam-dunk race that would have helped give the Democrats a Senate majority.
It is a safe assumption that Gorsuch will not turn belligerent during his confirmation hearings like the ill-fated Robert Bork or forget to disclose to the Senate nearly $100 million in assets like would-be Treasury Secretary Steven Mnuchin. Without any explosive revelations during the confirmation hearing, Senate Democrats will be confronted with the following no-win scenarios:
- Despite their threats, the Democrats do not mount a filibuster against Gorsuch, who is confirmed as the ninth justice in the spring. That would restore the role of Anthony Kennedy, whom Gorsuch clerked for, as the swing justice on a right-of-center court.
Result: McConnell and Senate Republicans pay no price for blocking Garland. Moreover, one more retirement, such as the 80-year-old Kennedy or a liberal like Ruth Bader Ginsberg, 83, would lead to a defiantly conservative court.
- Democrats filibuster Gorsuch, but their arguments about the treatment of Garland and the threat of overturning Roe v. Wade grow increasingly shrill and repetitive. One by one, Democrats facing tough 2018 reelection fights desert the cause and begin voting for cloture.
Result: Gorsuch is confirmed and the Democrats have squandered several months with nothing to show for it other than the initial cheers from true believers.
- Democrats filibuster Gorsuch until McConnell and the Senate Republicans invoke the nuclear option and approve a rules change eliminating filibusters on Supreme Court nominees.
Result: Gorsuch is confirmed and the Democrats have no way of delaying or denying the next Trump nominee for the court — no matter how extreme — without picking up three GOP defectors.
- Democrats hold firm month after month with their Gorsuch filibuster. And after more than six months of stalemate, Gorsuch requests that his name be withdrawn.
Result: After the liberal celebrations die down, Trump will most likely appoint someone more incendiary and less qualified than Gorsuch. Back at square one, Senate Democrats will begin to notice that their crusade against Gorsuch prevented them for highlighting the president’s abuses of power and ruptured relations with anti-Trump Republicans like John McCain and Lindsey Graham.
Game this out almost any way you want, and it is hard to see anything better than a Pyrrhic victory for the Senate Democrats. For all the worries about normalizing Donald Trump, the Gorsuch fight would revolve around attacking the White House for appointing someone that a Republican president like Jeb Bush or Marco Rubio might have chosen.
One of the hardest things in politics is for an out-of-power party to convince its most ardent supporters that its options on Capitol Hill are limited. It is why many conservatives still seethe over the failure of congressional Republicans to repeal Obamacare after the 2010 rebellion at the polls. Or, going back further, why liberals couldn’t understand the failure of House Speaker Nancy Pelosi to end the Iraq War on taking the gavel in 2007.
Unfortunately for the Democrats, things are unlikely to follow the roadmap of the last multi-year, multi-candidate fight over a Supreme Court seat.
It began in 1968 when Lyndon Johnson, already a lame duck, announced that he would be elevating his buddy Abe Fortas from associate justice to chief justice to replace Earl Warren. But the scheme was quashed when conservative Republicans objecting to cronyism joined forces with Southern Democrats objecting to Fortas’ liberal views on civil rights to block his elevation.
Then, early in Richard Nixon’s presidency, Fortas abruptly resigned his associate justice seat on the court after it was revealed that he had accepted a $20,000 fee from a former client under federal investigation.
Nixon, adhering to his go-slow-on-civil-rights Southern Strategy, nominated Clement Haynsworth, a courtly South Carolina jurist, to replace Fortas. But Haynsworth, with an obtuse view of judicial ethics, had ruled on cases involving companies in which he had owned stock. After Fortas, that was enough for the Democratic Senate to reject Nixon’s first choice.
Rather than retreating (and here you might see a similarity to Trump), Nixon responded by nominating the worst Supreme Court pick in modern history.
For starters, G. Harrold Carswell of Florida had made an unabashedly segregationist speech in 1948. Bryce Harlow, Nixon’s emissary to Capitol Hill, reported back to the president about the mood in the Senate in this blunt fashion: “They think Carswell’s a boob, a dummy. And what counter is there to that? He is.”
Then it got worse. Trying to defend Carswell, conservative Nebraska GOP Sen. Roman Hruska memorably declared in a radio interview, “Even if he were mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they?”
On April 8, 1970, the Senate rejected Carswell by a 51-to-45 vote that cut across party lines. Heeding the advice of new Chief Justice Warren Burger, Nixon abandoned to Southern strategy to make Harry Blackmun of Minnesota his third pick for the Fortas seat.
Now for the liberal fairy tale, unlikely to be repeated for, at least, another century:
In 1973, Blackmun wrote the majority opinion in Roe v. Wade, the abortion decision imperiled by the selection of Gorsuch and future Trump Supreme Court nominees.
Roll Call columnist Walter Shapiro is a veteran of Politics Daily, USA Today, Time, Newsweek and the Washington Post. His book on his con-man great-uncle was just published: “Hustling Hitler: The Jewish Vaudevillian Who Fooled the Fuhrer.” Follow him on Twitter @MrWalterShapiro.