Democrats: Don't Use Republican Playbook on Gorsuch
Democrats long complained about the way Republicans treated President Barack Obama. When Republicans refused to cooperate on legislation, when they threatened to shut down the government, when they stonewalled his Supreme Court nominee, Democrats lambasted them -- and justifiably so -- for dereliction of duty. Yet now that Donald Trump is in the White House, Democrats are threatening to adopt the very same tactics, concluding that they need to fight like Republicans. In other words, it’s their turn to act irresponsibly.
Of course, what goes around comes around, and the hunger for payback among Democrats is understandable. But the rule we all teach our children applies to Congress as well: Two wrongs don’t make a right.
The Democrats’ drift toward obstructionism is rooted in a fallacy: that the 2016 election was a validation of the Republicans’ obstructionist strategy in Congress. Standing in the way of the other party’s progress, the theory goes, is the best way to win back power. But Republicans won in 2016 in spite of Congress (which was deeply unpopular), not because of it. In addition, they were helped by a weak candidate at the top of the Democratic ticket and a Republican candidate who made inroads in Democratic areas partly because he ran against Washington’s dysfunction.
Nevertheless, liberal activists and interest groups are out for blood. They are now threatening to mount a primary challenge against any Democratic senator who shows an interest in bipartisanship. That’s the same strategy the Tea Party used to pressure Republicans into blocking cooperation with Obama.
Proponents of the obstructionist strategy argue that the ends justify the means – that any tactic to thwart the other side is acceptable. They couldn't be more wrong. No party has a monopoly on wisdom. Absolutism and extreme partisanship crowd out both compromise and fresh ideas. They also threaten the stability of our most vital democratic institutions: the judiciary, Congress and the presidency. Let’s consider each.
Republicans were wrong to stonewall Obama’s nominee to the Supreme Court, Merrick Garland. (Of course, Democrats had promised to use the tactic years earlier had a vacancy occurred under Republican presidents.) But the fact remains that the country needs a full complement of justices -- not only to break ties on major issues, but also to prevent a breakdown of constitutional order.
By all objective accounts, including from the American Bar Association, Gorsuch is a highly qualified nominee. He is not, of course, the person Democrats would have selected. But Democrats had a chance to determine the court’s make-up by electing their presidential nominee, and they failed. As President Obama once said, “Elections have consequences.” One of them is that the president gets to nominate and appoint justices to the Supreme Court.
If Democrats use the filibuster to block a vote on Gorsuch, the long tradition of approving high court nominations based on credentials rather than politics -- now on life support -- will die, and the court’s credibility will suffer for it. Moreover, while a filibuster may be cathartic, it won’t be effective. Republicans can simply eliminate it, as Democrats did for federal judges under Majority Leader Harry Reid.
Rather than overplay their hand, Democratic senators should use the confirmation hearing to ask questions that reveal how Gorsuch thinks about legal questions, rather than what he thinks about particular issues. Attempting to pin him down on how he would rule in a certain case is a futile exercise.
Instead, they should probe his intellect, judgment, record, and approach to stare decisis. (This was the approach that guided me in appointing judges to New York City’s courts -- never once did I ask, or learn, a candidate’s party affiliation or political leaning.) Democrats don’t need to vote for Gorsuch to vote against a filibuster, and they don’t need to agree with his judicial philosophy to vote for his confirmation.
The willingness of Democrats to adopt recent Republican tactics does not seem to be stopping with the judiciary. It's deeply troubling, for instance, that Senate Democrats are raising the possibility of a government shutdown if funding for a border wall is included in the budget.
When Senator Ted Cruz led the efforts to shut down the government rather than adopt budget resolutions funding the Affordable Care Act and Planned Parenthood, Democrats were outraged – and many Republicans opposed him.
Yet now, it is Democratic leaders, not just the most extreme members of the party, who are adopting Cruz’s tactics. They think -- wrongly, in my view -- that they will not be blamed by the public for a shutdown. But politics aside, shutting down the government would harm the American public and normalize a tactic that both parties should reject. That’s why I will support those who reject this tactic and show genuine interest in bipartisanship.
It is true that Republican obstructionism served, albeit imperfectly, the party’s interest in smaller government. Democratic obstructionism would have the opposite effect. Thwarting progress on issues where there is potential for cooperation would undercut the party’s commitment to using government to address problems. When it comes to the party’s priorities, from supporting working families to investing in infrastructure, winning small victories is better than winning nothing at all.
And then there's the executive branch. It is dispiriting that Democrats seem to have a newfound willingness to diminish public respect for the office of the president. Democrats rightly decried birthers for attempting to delegitimize President Obama. This was a fringe movement, but Republican leaders allowed it to persist for far too long. Now Democrats are in danger of making the same mistake. They were outraged -- rightly -- when Trump equivocated in the closing days of the campaign as to whether he would accept the voters’ verdict. But immediately after it was rendered, “Not My President” became a rallying cry on the left, and party leaders have said little to rein it in.
One can strongly support an independent and comprehensive investigation into Russian interference in the election -- as I do -- and still recognize that democracy only works if the losers accept election results. When they refuse to do so, when they seek to delegitimize a victor through defamation or denial, the risk of civil unrest increases. We are on a dangerous trend line.
Democrats who have criticized President Trump for failing to respect the office’s behavioral norms -- including by making wildly unsubstantiated claims and attacking federal judges -- ought to recognize that the stakes are far larger than this president, this Congress and this court. They also ought to recognize that engaging in flagrant hypocrisy will only fuel the “post-truth” society that right-wing media outlets have cultivated. When neither party respects the basic tenets of honesty, people believe whichever side they agree with whatever the facts -- or alternative facts -- may be.
It’s true that Republicans have little standing to complain about hypocrisy, given their record. But for their own good, and the good of the party, Democrats should muster the courage of their convictions and refuse to join a race to the bottom. Doing so would allow for bipartisan cooperation on a broad range of critical issues, from a bold infrastructure bill to improvements to our broken immigration system. Most important, it would protect the constitution -- and with it, our freedoms -- against the ravages of extreme partisanship.
To contact the editor responsible for this story:
David Shipley at email@example.com