gorsuch and such

First, in the interests of full disclosure, I note that (all else equal, and absent the ugly power plays that we saw) I much prefer having Neil Gorsuch on the SCOTUS over having Merrick Garland -- especially given that we're talking about replacing Antonin Scalia. However I must admit that Garland was, as far as I know, qualified for the SCOTUS. More on that later.

I have read a lot of commentators saying that Charles Schumer played his hand poorly; in staging a filibuster, knowing that the Republicans would resort to the nuclear option, he weakened the Democrats in advance of any other SCOTUS nominations that Trump may make. I disagree. Schumer was dealt a losing hand, and played it as best it could have been played.

If Schumer hadn't filibustered, the Democratic base would have attacked him for caving in to the Republicans. From that perspective alone, a feckless filibuster is better than nothing. But aside from that, even if he hadn't filibustered, the fact is that, the dynamics now being what they are, the filibuster was only going to last until one of the parties needed to nuke it. Last fall, when everyone expected the Hillary Clinton to win the Presidency and the Democrats to gain a Senate majority, Democratic leadership made it clear that they would go nuclear if they needed to to get a SCOTUS pick through. It's true that that was in the face of the Republicans' historic obstruction of the Garland nomination -- but I did note a few sentences ago that I'm talking about "the dynamics now being what they are." The fact that the Republicans were willing to go nuclear is now self-evident. This way, Schumer forced the Republicans to be the ones to go nuclear. So the Democrats can at least point to them and scream that they're the ones who are breaking the Senate.

I fear that we are entering -- or have entered -- an era in which the President can only get a SCOTUS nominee confirmed if the Senate is controlled by his or her party.

So how did we get here?

The most logical place to start is with the Garland nomination. One can argue that it goes back farther -- the (lower court) filibusters under President Bush (the son) and the gang of 14, Bork and Thomas, etc. And one shouldn't ignore the fact that the tactics have been escalating for decades. Still though, Obama's prior picks (Kagan and Sotomayor) had gone through with relatively little controversy. So Garland is where I'm starting. The Republicans should have given Garland a hearing. And, assuming nothing untoward had come out of it, given him a vote and confirmed him. I suspect that, had it been a liberal justice being replaced (instead of Scalia), things wouldn't have gotten so nasty. That really shouldn't matter. A SCOTUS seat is a SCOTUS seat -- there aren't conservative seats and liberal seats. But it does matter. And we all know that. So the seat that should have gone to Garland -- and I also acknowledge that Garland was a relative moderate, whom Obama probably picked as a bit of an olive branch.

But I don't put 100% of the blame on the Republicans. Joe Biden (1992) and Charles Schumer (2007) had stated that a President shouldn't nominate a SCOTUS pick during his last year. Of course, while they tried to make their points sound like matters of high principle, it's clear that they were simply partisan posturing. The same, of course can be said about all the arguing about the filibuster. The worst part of politics is the politicians. The irony is that Biden's and Schumer's statements were essentially unforced errors, since neither Bush (the father in 1992, and the son in 2008) had any additional vacancies to fill. The arguments that Democrats made last year about how the President's term is a full four years, and his right to nominate SCOTUS judges doesn't end after three are absolutely correct. But Biden and Schumer had argued otherwise, and gave the Republicans cover to do so. But it's more than that -- since the Democrats had essentially paraded out a new weapon in the ongoing battle for the SCOTUS. Arguably, it would have been foolish for the Republicans to eschew use of that same weapon.

That said, I would have preferred that the Republicans had given Garland a fair hearing. Perhaps they could have kept us off the road we're on now. With Scalia, the opening came nine months before the election. But the slope can get slippery very quickly. Next time it could be an opening eleven months before the election. Then thirteen months. Where does one draw the line? And why there? Politicians may start making assertions couched as principled stands, but -- as with Biden's and Schumer's arguments, these will be matters of naked political expedience.

So, during the election -- especially after the first debate -- it was expected that Clinton would win and nominate someone more liberal. Liberals started gloating that the Republican Senate should rush and confirm Garland, since they won't get anything better. And they were hoping that Obama would withdraw the nomination before the Republicans acted on it.

What a difference an election makes. We got the Trump presidency and Gorsuch. Some have argued that Trump was somehow obligated to make things right by nominating Garland, or that Gorsuch should have turned down the nomination so that it could go to Garland. I sympathize. And if the situation were reversed, I might secretly hope for such magnanimity. But I would know better than to suggest it or expect it. That's simply not how it works.

And on to the filibuster. Let's consider a few facts:

• The Democrats were disingenuous to claim that this was about Gorsuch not being suitable for the Supreme Court. He got the highest possible rating from the ABA.
• The Republicans were disingenuous in noting that this was the first partisan filibuster of a SCOTUS nominee. It may be technically correct, but blocking Garland was the equivalent (or worse) of a filibuster.
• The Democrats were disingenuous to argue against the nuclear option. They had already nuked the filibuster for lower court nominees. They now say they kept it in place for SCOTUS because that's different. But they were ready to go down the same road if Clinton had won and they had regained the Senate. The real reason they kept the filibuster for SCOTUS in place is that they didn't need to nuke it.

Gee, there's lots of disingenuousness all over the place.

Yeah, I am happy to have Gorsuch on the court. I prefer him to Garland. But there will come a day when something happens that I don't like, and that something will be traceable back to these events. And I won't be happy about it.