March 26, 2017

Now that the Democrats have announced their intention to filibuster Neil Gorsuch, one of the most qualified and non-filibuster worthy judges Trump could possibly have nominated, they committed most of their face time to argue how terrible and unthinkable it would be for the Republicans to invoke the so-called nuclear option.  Blatant and shameless hypocrisy aside, this is a prime example of situational ethics, i.e. the different application of ethical rules depending on whether they help or hurt your political side.  Chuck Schumer’s quote, “If the nominee can’t get 60 votes, you don’t change the rules, you change the candidate,” is particularly laughable, considering that when Obama’s judicial nominees couldn’t get 60 votes, he didn’t change the nominee, he changed the rules.  The fact is that, as the Democrats watch the Republicans confirm Neil Gorsuch to a seat that should have been occupied by Merrick Garland, they have nobody to blame but themselves.  The Republicans are simply playing by the rules the Democrats set.

With judicial confirmation, what is most important is the consistent application of the rules.  Think of it like pass interference in football.  It’s less important whether the referees call the game tightly or loosely, and more important that they call it consistently.  It’s the same way with judicial confirmations in the Senate.  What’s important is that the majority party treats judicial nominees the same way whether Republicans or Democrats are the majority party.  We simply cannot have one set of rules for when the Republicans are in power and another for the Democrats.

This is why Republicans were justified in blocking the nomination of Merrick Garland.  When the Democrats took the Senate in 2006, they made a point of blocking President Bush’s nominees, sensing that they were two years away from one of their own selecting the federal judiciary.  Naturally, when Republicans took the Senate two years away from the end of a Democratic administration, they did the same.  To do otherwise would be to cede selection of federal judges to the Democrats and would have been politically irresponsible.  The fact that this time the judge being blocked was a Supreme Court justice instead of a lower level judge is serendipity and doesn’t change the fundamental equation.

The same logic applies even more clearly to the filibuster.  The degree to which the Republicans filibustered President Obama’s judicial picks was unprecedented, so the Democrats took the unprecedented step to do away with the filibuster.  Democrats are now taking the unprecedented step of filibustering a Supreme Court nominee.  Republicans should not hesitate to respond exactly like the Democrats did, especially considering that the consequences of Reid’s decision to go nuclear were easily foreseeable at the time he made the decision.  A number of commentators pointed out that Democrats were likely to pay a price for their decision when the tables were turned, but Harry Reid, with all the foresight of a field mouse, went ahead with it anyway.  The tables are turned, and the Democrats will now pay that price for their hubris.  For them to suggest the Republicans do otherwise is a naked power play wrapped up in sheer hypocrisy.  Mind you, I am not suggesting Republicans are doing or should do any of this in retaliation.  I am simply suggesting both parties play by a uniform set of rules.

Let me be clear about something here.  I hate what the nomination process has become.  I’ve always believed in giving the president a great deal of deference to appoint whom he will, so long as the individual is competent, qualified, and free from corruption.  To this end, I supported the confirmation of both Justice Sotomayor and Justice Kagan, despite strenuously disagreeing with their judicial philosophy.  However, Republicans cannot give the Democrats carte blanche to shape the federal judiciary, especially considering that the Democrats, as President Obama himself articulated, view the judiciary as another tool to enforce their ideology.  In an ideal world, Merrick Garland would have been confirmed and the judiciary would retain its dignity and independence.  However, we don’t live in an ideal world.  We live in a world crafted by Democratic precedents, and they have turned the judicial confirmation process into nothing more than another battleground in the partisan war the engulfs our nation.

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