This morning Senate Dems announced they had enough votes to filibuster the Gorsuch nomination. It’s assumed Republicans will go nuclear and change Senate rules to allow Gorsuch to be confirmed with a simple majority. And, of course, they will blame Democrats for forcing them to do that.
But, putting aside the fact that Republicans didn’t even give Merrick Garland a hearing for months, Democrats are standing on the moral high ground on the merits. That’s because, at his confirmation hearings, Gorsuch steadily evaded questions designed to pin down his legal views, denying voters any insight into those views. This gives Dems both a defense against the “obstructionist” charge and gives them the better political argument.
Some have argued that Democrats should save their political capital for a future nominee. Gorsuch, this argument goes, won’t shift the balance of power on the court since his views essentially align with those of his predecessor, the late Antonin Scalia. Democrats, then, should hold their fire for a future Trump nominee to replace one of the liberal justices on the court, when the future of abortion rights, for example, hangs in the balance.
But Gorsuch has handed Democrats a robust case against his confirmation, and they should use it. First, there are his rulings. He ruled against a worker suing his employer in what’s now known as the frozen trucker case, siding with an employer who fired its driver Alphonse Maddin, for abandoning his incapacitated (and unheated) truck in subzero temperatures. Gorsuch also ruled for Hobby Lobby over its female employees, holding that a privately held corporation had a religious right to object to the contraception coverage requirement under the Affordable Care Act. In both, Gorsuch showed he’s inclined to interpret statutes as protective of companies with readings that most Democrats and liberal legal experts find highly questionable.
Do read the whole thing.