Democrats Should Hold the Gorsuch Nomination Hostage


Judge Neil Gorsuch is a genuinely outstanding jurist, who would be a superb addition to the United States Supreme Court. All Americans can and should be deeply proud that his intellect, his devotion to scholarship, and his fidelity to original public meaning jurisprudence has brought him to this extraordinary moment in his career and his life. I greatly respect his ability, his jurisprudential philosophy, and his character, which by all accounts is beyond reproach.

I suppose this sounds as though I am putting aside my Never-Trumpism for a moment and supporting the Trump administration in its nomination of Judge Gorsuch. But that is not the case. Judge Gorsuch should not be permitted to take a seat on the Supreme Court until exceedingly painful concessions are wrung from Donald Trump.

Let’s start with a very basic fact: The prototypical Trump appointment is not someone like Neil Gorsuch. Rather, it is someone like Steve Bannon (more here) whose appalling racist, xenophobic views run counter not only to American foreign, national security and economic interests, they also run contrary to American values and undermine American soft power–the power with which America does much of its persuading. Bannon is an unreconstructed bigot, and as such, he fits in quite well in the Trump administration. To be sure, there are people like James Mattis and Neil Gorsuch, who have been brought to the public stage thanks to Trump, but Mattis, Gorsuch and their like are laudable because they are the very antithesis of the likes of Trump and Bannon. This point cannot be stressed enough.

Tonight, for many so-called “conservatives,” these points of principle matter not a whit–perhaps in large part because so much of the conservative movement (which is filled more with Jacobins than with actual conservatives; Robespierre would be proud and Burke would be utterly appalled) have absolutely no interest in preserving principles, standards of decency, or anything resembling a sense of honor. All that matters for these faux conservatives is that Neil Gorsuch is “Scalia 2.0”, and that the “Scalia seat” is safely in conservative hands. For all of this, they are willing to sidle up to Donald Trump–who has betrayed conservatives on so many issues, and who will betray them anew, when he is not busy betraying the rest of the country–and ask for ear scratches. They forget, of course, that powerful people who throw you a bone are powerful people who think that you are a dog.

I am not going to forget. I am not going to forget the casual anti-Semitism of the Trump administration. I am not going to forget the disgusting, self-defeating xenophobia. I’m not going to forget that the Trump administration’s policies are an attack on people like me. I am not going to forget the attempts to shut down, shut up and ostracize a free and independent press. I am not going to forget the fact that the attempts to shut down, shut up and ostracize a free and independent press result directly from the fact that the free and independent press regularly busts the Trump administration and its lackeys for pathological lying.

I am not going to forget the fact that Donald Trump and his revolting administration have blood on their hands. I am not going to forget the unbelievable incompetence that characterizes this White House. I am not going to forget the way in which this administration toys with the lives of innocents. I am not going to forget the way in which this administration regularly and appallingly flouts regular order, potentially violating House rules in the process. And I am certainly not going to forget the jaw-dropping immaturity of the president of the United States.

I will forget none of this. But I do think that Neil Gorsuch is a great judge who could make a great justice.

What to do, then?

Notwithstanding my respect and regard for Judge Gorsuch, I am tempted to urge Senate Democrats to filibuster the nomination. Why shouldn’t they? Merrick Garland couldn’t even get so much as a hearing in the United States Senate when Barack Obama nominated him for the Supreme Court, and while the Senate was within its rights to do that, the action violated unwritten rules and norms that helped the republic function smoothly, and once upon a time, were the objects of piety, respect and devotion from actual conservatives. The excuse given for this departure from rules and norms was that somehow, magically, the president of the United States loses his/her ability to nominate Supreme Court justices in his/her eighth year in office, which is a stupid, intelligence-insulting, utterly unconstitutional argument whose articulation and advancement as a serious proposition by anyone robs that anyone of any right whatsoever to call him/herself a textualist/originalist/strict constructionist/adherent of original public meaning jurisprudence. And note that when it looked as though Hillary Clinton might become president, Republicans suggested shrinking the size of the Supreme Court, just so that Clinton could not nominate anyone to the Court.

The hypocrisy, the double-standards, the nausea-inducing dishonesty of Senate Republicans on this issue entirely justify a filibuster of the Gorsuch nomination. Turnabout is completely fair play, and any fair-minded person would believe that Republicans have revenge coming.

But it seems to me that there is a far better way to get inside Trump’s OODA loop, catch him unawares, extract a brutal price from this White House, and possibly set Trump against congressional Republicans, who may be willing in the future to further defy Trump and wreck his presidency.

In the magnanimous spirit once so graciously shown by Khan Noonien Singh, Democrats should inform the Trump administration that they will agree to the Gorsuch nomination if–if–Donald Trump completely and entirely capitulates on all of the following issues:

  • Donald Trump will release to the public all of his tax returns, going back 20 years, in full. If so much as a comma is missing, he will be found not to have fulfilled his part of the bargain. Trump will further sign a bill obliging the president and vice president of the United States to divulge to the public on a yearly basis their tax returns, regardless of any circumstances affecting the tax returns. This bill shall be effective retroactive to January 20, 2017.
  • Effective immediately, Donald Trump will sell and divest himself of any and all business interests and holdings and ownership of business interests and holdings. He will set up a blind trust, and he will otherwise act in accordance with the practice of his predecessors, who behaved as though they were covered by existing conflict of interest laws. The Trump organization shall be managed by an independent trustee, who will displace Donald Trump, Jr. and Eric Trump as the manager of Trump’s business holdings. Trump will further sign a bill amending the existing conflict of interest law so that the law fully covers the president and vice president of the United States. This bill shall be effective retroactive to January 20, 2017.
  • Effective immediately, Trump will rescind his executive order instituting a travel/Muslim ban, and will pledge not to reintroduce it. Should he break this promise (and of course, I would not put such an act past him), Democrats will engage in scorched-earth tactics in the United States Senate that will bring Trump’s agenda to a screeching halt and render his presidency a complete failure.

Should these demands not be complied with in full, Democrats should filibuster the Gorsuch nomination.

I could add more demands, but for now, this will do. From where I sit, the beauty of all of this–especially the first two demands–is that it forces Trump and the Republican party to decide whether hiding Trump’s doubtless embarrassing tax and financial information from the public, and eliminating Trump’s business holdings is more important than a Supreme Court seat. Republicans clearly want the seat. If Trump resists capitulating, they may not get it. The resulting conflict may irreparably split Trump from his own party, costing him valuable support among congressional Republicans and his own base. Trump will be weakened and crippled, his poll ratings–already abysmal–will plummet further, and in 2020 (assuming that he stays in office that long), he may even face a challenger for the Republican nomination.

If Trump does capitulate, Democrats should take the most embarrassing portions of the tax returns, highlight them, and thoroughly embarrass Trump by using the information to attack Trump in public. There should be huge rallies in every major American city that can be reached, where people like Nancy Pelosi, Charles Schumer, Elizabeth Warren and Bernie Sanders can incorporate information from Trump’s tax returns into stump speeches that attack Trump as a plutocrat, as a failed businessman, as someone who is not nearly as rich as he claims to be, and (quite likely) as a crook. Heck, Barack Obama and Hillary Clinton can join in on the fun. If the Democrats find evidence of crooked behavior–and who actually believes that they won’t–they should hound Trump and his administration repeatedly about the issue. If they capture one or both houses of Congress in 2018, they should hold repeated investigations designed to wear down, embarrass and beat into submission the Trump regime. Mitch McConnell wanted the Obama administration to be a one-term failure. Democrats should want the same thing for Trump, and they should strive to do to him what McConnell failed to do to President Obama.

Donald Trump is counting on members of the United States Senate to make a binary choice regarding the Gorsuch nomination–either support it or oppose it. Democrats should not take the bait. Rather, they should make Trump pay and pay dearly for the behavior he has exhibited, the written and unwritten norms he has violated, the stupidity and incompetence that he and his team have displayed, and all of the chaos that has resulted. Then, and only then, Trump can have his judge made into a justice on the United States Supreme Court.

Such would be a proper and righteous political vengeance. And its target would deserve the retribution in full. Let Donald Trump absorb some political punishment. The rest of the country has suffered quite enough since Inauguration Day of this year.


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