Despite the howls of top Republicans, the use of the apocalyptic-sounding “nuclear option” is neither being forced upon the GOP nor will be particularly dramatic when the party unleashes it to ensure that Neil Gorsuch will become the Supreme Court’s newest member. The damage to the Senate’s reputation has already occurred. A Democratic filibuster of Supreme Court nominee Neil Gorsuch may be the only way to restore the Senate’s title as the “deliberative body.”
I get why others, such as my colleagues on the Observer’s Editorial Board, see things differently and believe Democrats should not filibuster Gorsuch. The instinct is a sound one, akin to the mother telling her son that violence is never the answer.
But the messy truth is that sometimes the bully won’t get the message until he’s been punched in the nose.
We’ve come to this moment because of the words and deeds of high-profile Republicans from the Carolinas. South Carolina’s senior senator, Lindsey Graham, led the charge in denying Merrick Garland a hearing after then-President Obama nominated Garland for the Supreme Court seat that needed to be filled in the wake of Justice Antonin Scalia’s death. North Carolina Sen. Richard Burr underscored just how extreme the GOP has become when he declared that even if Hillary Clinton won the presidency, he would “do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.”
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He also bragged that he was already responsible for the longest judicial vacancy ever by denying the confirmation of an Obama nominee in the eastern district of North Carolina, illustrating just why Democrats felt the need to use the nuclear option for lower court appointments when they were in control. They did so in response to a Republican Party that routinely filibustered Obama nominees. While they haven’t gotten as much attention, that tactic left dozens of empty judicial seats throughout the country that can now be filled by President Donald Trump.
Democrats are far from perfect, but the party never left the nation’s top court short-handed for more than a year for nakedly political purposes. The Democratic filibuster won’t prevent Gorsuch from making the Supreme Court whole. It will just lay bare the truth that the GOP is willing to do whatever possible to get its way. Democrats going along with the Gorsuch nomination would only make it harder for the public to notice that stark reality.
The depth of political hypocrisy now on display among Republicans can’t be fully understood without that context. It must be remembered every time Graham scolds Democrats for not solely focusing on the qualifications of Gorsuch, given that Garland was equally qualified. It must be remembered when Graham says that elections have consequences, given that he did not care that Obama had also been duly elected.
“I’m not going to be part of a Senate where Democrats get their judges but Republicans don’t get theirs,” Graham recently declared.
“We will not have a successful filibuster of a Supreme Court nominee because if we have to, we will change the rules,” he said. “And it looks like we’re going to have to. I hate that. I really, really do.”
Graham doesn’t hate that a Senate tradition is about to be destroyed – because he was responsible for much of its destruction.
If Democrats simply went along and acted as though the GOP’s purposeful decision to leave the Supreme Court short-handed for a year was a legitimate exercise of political power, they would unwittingly be codifying that extremism.
And that would not be good for either party – or the country.