The case for all-out war against Gorsuch

Senate Democrats are wobbling on whether to filibuster President Trump's nominee for the Supreme Court, Neil Gorsuch. Politico reports that at least seven conservative Democratic senators favor an open vote for Gorsuch, while others (including Minority Leader Chuck Schumer) are fretting about whether they should risk appearing obstructionist. Maybe, they wonder, Democrats should just try to preserve the filibuster for a later, even more conservative nominee.

This line of thinking is everything wrong with the Democratic Party.

While Senate Democrats have the numbers to sustain a few defections, they absolutely must filibuster Gorsuch, or any other nominee Trump dredges up out of the Republican swamp, both as a matter of principle and if they want to have a chance in the 2018 midterms.

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The most important fact to keep in mind is that this is a stolen seat, as Sen. Jeff Merkley (D-Ore.) rightly says. Supreme Court justices have retired or died in the final year of a presidential term on numerous occasions, and presidents still got their nominees through — including President Reagan. Blocking a nominee for an entire year in the hope that the next president will be from the other party, as Senate Republicans did with Merrick Garland, has literally never happened before. Indeed, Obama almost certainly could have recess-appointed him, if he weren't such a hesitant compromiser.

Yet that norm is now established. No longer will any president get to fill a Supreme Court seat unless his or her party also controls the Senate. Just listen to Republican senators like John McCain and Ted Cruz, who were promising to hold the seat open throughout Hillary Clinton's entire presidency when it appeared she was going to win. Since Republicans do control the Senate, Gorsuch is going through no matter what. The filibuster will stand until the first instant it impedes the Republican agenda, and then it will be killed. As Jonathan Chait argues, you might as well stand up to Trump's nominee now, and force Senate Majority Leader Mitch McConnell to own the consequences of jamming Gorsuch into the stolen seat.

The case for all-out partisan trench war is dramatically strengthened by the surrounding political circumstances. Donald Trump lost the popular vote by the biggest margin of any president, and in an election marked by efforts at systematic disenfranchisement of African-Americans and FBI meddling on Trump's behalf. Yet instead of trying to govern in a moderate fashion (as President Obama basically did despite actually winning the popular vote twice), Trump and his inner circle of white nationalist advisers are jamming through radical, bigoted policy as fast as they can. Most alarmingly, they're trying to ban Muslim immigration from seven countries through executive order, and apparently directing federal law enforcement to ignore federal court orders staying the action. (And that's only the beginning.)

Sometime soon the Supreme Court will rule on the question of Trump's defiance of federal court orders, and as Tom Scocca argues, there is every reason to think that Gorsuch will behave as a "partisan stooge." This raises the additional highly alarming prospect of Trump's nominee serving to legally launder his illegal actions.

To cap it all off, Trump is unpopular — and for a recently-elected president, wildly so. Trump's executive order has already caused massive chaos, and Republicans are preparing mass deportation and to throw millions off their health insurance. Ordinary liberals are beside themselves with fury, and protests (built on a foundation carefully built up over the years by Black Lives Matter and other groups) are organically springing up on a near-daily basis. And not just in New York and D.C., but also in places like Birmingham and Louisville.

Democrats will face midterm elections next year, and the Senate map for them is incredibly hard, with many seats up in states that Trump won. But it would be a great mistake to think compromising with Trump is the way to win those seats. Their basic problem is turnout, and Democrats need a fervent, activist core to juice turnout of their traditional demographic groups, which have not recently turned out for midterms. But to get that core, they need to give them something to fight for.

Right now there is incredible anti-Trump energy. If Democrats want to channel that energy, they must credibly signal that they will fight Trump tooth and nail. Filibustering Gorsuch is the loudest way they can do it.