The Democrats' Gorsuch dilemma

Whether by instinct or through good advice, Trump may have hit on a perfect move to frustrate liberals' goals

It's almost like he knows what he's doing.

A few days ago President Trump threw the country wantonly into crisis by ordering an unnecessary and needlessly cruel ban on travel to the U.S. from seven majority-Muslim countries. Massive protests and furious condemnation from the Democratic opposition followed, along with resistance from within the federal bureaucracy. A revivified left declared their determination to stop an incipient dictatorship by any means necessary.

So this week, Trump turned around and did something shockingly reasonable: He nominated Neil Gorsuch to the Supreme Court. Gorsuch is not only an eminently qualified candidate — he's exactly the kind of conservative whom liberals and Democrats should want there in the age of Trump.

Neil Gorsuch is unquestionably a very conservative judge. Like the late Justice Antonin Scalia, he's a textualist and an originalist, someone who believes that the Constitution and ordinary statutes should be interpreted based on how their actual language would have been understood at the time. He's ruled in favor of organizations seeking exemption from Obama's contraceptive mandate on religious grounds, and wrote a book opposing assisted-suicide. He would be a thorn in the side of a future Democratic president who sought to expand government involvement in the economy in novel ways, or to further extend the scope of anti-discrimination law.

But he's also a man with a reputation both for collegiality and independence of mind. He's arguably a less prosecutor-friendly judge than President Obama's previous choice, Merrick Garland. He's been less-deferential to claims of executive power than either Garland or Scalia. And his defense of religious freedom has not by any means been limited to dominant religious groups. A conservative justice who views government with a jaundiced eye, and who privileges the legislature over the executive, could really come in handy if Trump were to infringe on press freedoms, or corrupt the federal bureaucracy, or further extend the reach of executive power beyond the precedents that Bush and Obama set — all serious concerns that liberals have voiced since the election.

So there's a case to be made on the merits that liberals should support Gorsuch's appointment. And there's also a case for doing so on the politics.

The only way for Democrats to be more than a petulant opposition is for them to win the House and/or the Senate in 2018. But the Democrats are defending 25 out of 34 Senate seats up for election in 2018, including seats in Indiana, Missouri, Montana, North Dakota, and West Virginia, and their best chances for picking up seats are in Nevada and Arizona. Will opposing Gorsuch help Democratic candidates win these races? On the contrary — even having to break with their party would be a negative, since it associates the Democratic brand with opposition.

Moreover, between now and 2018 the Democrats need allies in the Senate to block Trump's most egregious moves and nominations. Senators like Rand Paul (Ky.), John McCain (Ariz.), Lisa Murkowski (Alaska), Susan Collins (Maine), and Ben Sasse (Neb.) have already demonstrated some willingness to break with the administration. The Democrats need to find ways to divide the Republican caucus, not give them more reasons to feel they have to hang together lest they surely hang separately.

But the Democrats don't have the luxury of thinking only about how to expand their coalition and fracture the opposition. They also have to keep their base happy. And their base would not be happy with anything less than total opposition.

Opponents of Gorsuch correctly point out that Trump only had the opportunity to appoint someone in the first place because the Republican Senate refused to even consider Obama's nominee. (Gorsuch himself has criticized both parties for their shabby treatment of qualified judicial nominees.) The Democrats are understandably loathe to let that unprecedented obstruction stand without consequence.

They also point out that if Gorsuch's nomination proceeds easily to approval, that this will encourage other aging justices like Anthony Kennedy to consider retirement. Once Gorsuch is approved, though, it will be harder to justify opposition to similarly-qualified conservative candidates, and the Democrats could quickly find themselves having facilitated the entrenchment of a right-wing majority on the Court.

Moreover, advocates of wall-to-wall opposition point to the success of the Tea Party in 2009-2010 as evidence that you don't need to play to the center to win — that, arguably, it's better to focus on energizing your base. That base would not only be deeply demoralized by any let-up in the opposition to Trump; it would consider the downgrading of priorities like reproductive rights to be an outright betrayal.

The Democratic Party faces a two-headed problem. Its base doesn't trust its leadership, and so when the leadership says this isn't the hill to die on, they suspect betrayal. But that same base is too inefficiently distributed to win a close national election. The Democrats have to find ways to expand their coalition while simultaneously convincing their base that they can be trusted.

Whether by instinct or through good advice, Trump has hit on a perfect move to frustrate that goal.

To regain the initiative, Democrats need to focus their approach to Gorsuch on their fears of Trump. Ask him about the rights of non-citizens. Ask him about war powers. Ask him about political interference in regulatory oversight. Ask him about anti-trust. Ask him about government surveillance. Ask him about whistleblowers. Heck, ask him about the emoluments clause if you want. Make it look like you're not trying to get business done or to make reasonable compromises — make it look like you're trying to see if Trump might have played himself.

Maybe Gorsuch will weasel like a good team player. In that case, you'll have the cover to oppose him for being a partisan Republican and not a principled jurist. Maybe he'll give answers that are genuinely reassuring to liberals. In that case, you'll have cover to make the case to the base for supporting him.

And maybe you'll really get lucky, and he'll say something that gets under the skin of the man who nominated him.


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