Neil Buchanan: The Craven Republican Hacks Who Let Gorsuch Join the Supreme Court

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Senators John McCain and Lindsey Graham at the U.S. Capitol in Washington, January 13, 2015. Neil Buchanan writes that in the confirmation process for Judge Gorsuch, supposed moderates like John McCain and Susan Collins showed their fraudulent commitment to Senate traditions. This was yet another case in which those two could have cast consequence-free votes against Trump and the extreme right-wing agenda. Jonathan Ernst/reuters

This article first appeared on the Dorf on Law site.

And now Judge Gorsuch is Justice Gorsuch, completing the successful scorched-earth maneuvering by Senate Republicans to move the Supreme Court even further to the right. May God have mercy on Mitch McConnell's soul (if He can find it). As bad as this is, it is not a surprise.

What is surprising is that the Senate Democrats actually figured out a way to make a few good things happen in the midst of this year-long travesty, even though they knew that they would lose the ultimate battle. Somewhat more surprisingly, Democratic politicians were actually more savvy than the left-leaning pundits this time around.

Typically, Democratic politicians have been reliably unreliable, refusing to take principled, united stands even when they have the votes as well as the merits of the issues with them. (See, e.g., the Public Option.) And it is the liberal punditocracy that steps forward to tell them to get a clue.

Not this time. When Democrats were discussing the possibility of filibustering the Gorsuch nomination, daring the Republicans to "go nuclear," many liberal commentators (including Stephen Colbert) snarked at the Democrats for trying to do something but ultimately failing.

But that was an easy, cheap shot. The same commentators who mocked the Democrats for bothering to filibuster, after all, could just as easily have mocked them for not even trying: "Look, Democrats, I know you're out of power, but do you have to look so weak?"

Most importantly, there was surprising acceptance among prominent writers on the left side of the political divide that Senate Democrats were in no position to complain, because after all there really was a history of equivalent bad behavior on the Democrats' part. "They all do it" became a background story to the Gorsuch fight.

False equivalence is infuriating in all of its many guises, but the idea that the rejection of Robert Bork 's nomination to the Supreme Court by a bipartisan group of 58 senators in 1987 somehow justifies the Republicans' subsequent behavior in the Senate stands out as one of the most dishonest readings of history in current U.S. political discourse.

One liberal commentator, New York Times columnist David Leonhardt, wrote that the "both sides do it" narrative "is not exactly wrong," because "Democrats have engaged in some nasty judicial tactics over the years. Most famously, they blocked the highly qualified, and extremely conservative, Robert Bork from joining the Supreme Court in 1987."

Ultimately, Leonhardt came down in favor of the Democrats' use of the filibuster against Gorsuch's nomination last week, but this is a perfect example of the kind of polite academic dithering -- "To be fair, we must admit ... ," "Viewed in the most favorable light, this is not exactly wrong." -- that we can no longer afford in the light of Trump's assaults on truth and normal discourse (and decency).

Similarly, the editorial board of The New York Times wrote:

Some of the blame rests with the Democrats. Many of them over the years have played to their base by casting cost-free votes against Republican nominees. Republicans like to say that Democrats’ 1987 blocking of Robert Bork marked the beginning of the politicization of Supreme Court nominations, but Democrats did give Mr. Bork a vote.

At least they gave him a vote? While that is important and true, it fails to challenge (and thus implicitly endorses) the baseless claim that Democrats "politicized" the court by voting against Bork, when in fact Bork's hearings and the Senate's debate on his nomination were the very model of "advise and consent" that the Constitution requires. "He's a prominent academic, and the president nominated him" was no longer going to be sufficient to deem a man qualified to sit on the high court.

If the Bork hearings did not exist, Republicans would have to invent them. Check that. The Republicans did invent the Bork hearings, and many liberals have been fooled ever since. At these completely mythical hearings, a good man was hounded for being conservative, taken down by men who refused to listen to his reasoned defenses of his completely unobjectionable judicial philosophy.

What is surprising about seeing Leonhardt and The Times 's editorial board getting this so wrong is that their very own Supreme Court expert, Linda Greenhouse, published a recent column in which she discussed the Bork myth, mentioning among other bizarre moments Bork's defense of his view (as "a matter of plain arithmetic") that rights are a zero-sum game.

Greenhouse also linked to a 2013 column (" Robert Bork's Tragedy ") in which she described in detail the fair, searching hearing that the Senate gave Bork's nomination. The only way to describe what happened to Bork as "politicizing" the hearings is to say that the Senate has no business asking about a nominee's views at all.

Related: Neil Buchanan: Why Is Trump Bothering to Govern?

On that topic, Greenhouse also points out that there is a subsidiary myth that Justice Ruth Bader Ginsburg refused to give substantive answers during her confirmation hearings, which supposedly justifies Gorsuch's farcical nomination hearings last month. That is not what happened at all.

And it is not as if this is the first time that people have tried to set the record straight on the Bork myth. Back in 2001, John P. MacKenzie wrote in the Washington Post:

Here is news to many who were not there in 1987 when the Senate rejected Robert Bork for the Supreme Court: Character assassination, smear tactics or dirty tricks did not defeat the nominee. He beat himself.

For many of us who were watching at the time, the hearings were positively thrilling. It was a real-time civics lesson in which important men grappled with large questions about how the government should work, and how to make the Constitution's promises real. Most significantly, it was not a foregone conclusion.

I can see how an extreme conservative would be disappointed that Bork's nomination was voted down. They would not be likely to recall the hearings as "thrilling," given the outcome, but the man and his defenders had more than enough opportunity to defend and explain his views. He simply lost.

This, by the way, made the 1991 hearings on Clarence Thomas even more disillusioning, because in only four short years, the Republicans had figured out how to subvert the hearings on an even more unacceptable nominee into a foregone, partisan conclusion.

All of which brings us back to the current Senate Democrats and their limited arsenal in dealing with Senate Republicans. The left-leaning editorial boards of both The New York Times and the Washington Post chided the Democrats for filibustering Gorsuch's nomination, arguing essentially that they should have preserved the filibuster for later use.

In a recent column, William Haussdorf exposes the inanity of that argument, especially the idea that there might be a future court nominee who will be so terribly unqualified that Democrats will wish that they still had recourse to the filibuster.

If there are any Republicans who have some limit to how much they are willing to flush their integrity down the tubes, they will have an opportunity to take a stand when Trump nominates Steve Bannon or Rick Perry to the Court.

But the bigger point is that Senate Democrats had a choice. They could have said: "Oh, gee, we only have 48 votes, so we know we're ultimately going to lose, one way or another. Why even try? Let's try to get along with our good friends across the aisle." Instead, they forced the Republicans to show that they have no principles and are willing to burn down the Senate in the service of their partisan agenda.

This clears the fog around any future nominations. One way or another, the Republicans were going to do this, so why not make it happen in a very high-profile way?

Related: Neil Buchanan: re Republicans Prepared to Burn Down the Senate?

Forcing the Republicans out into the open is no small victory. Going forward, even the deeply committed "Let's all get along" pundits cannot seriously believe that the Republicans are not simply going to take what they can get.

As a bonus, Democrats were also treated to the public exposure of supposed moderates like John McCain and Susan Collins for their fraudulent commitment to Senate traditions. This was yet another case in which those two -- in fact, any combination of two self-styled moderate Republican senators, and more if the three Democrats who voted for Gorsuch had held to their votes -- could have cast consequence-free votes against Trump and the extreme right-wing agenda.

Collins, for example, joined with Lisa Murkowski to vote against confirming the astoundingly unqualified Betsy DeVos as Secretary of Education. All that did was cause Vice President Pence to have to cast a vote. Who doubts that he would have done so on the key procedural votes and confirmation vote for Gorsuch?

But now, John McCain is on record both as saying that anyone who thinks getting rid of the filibuster is a good idea "is a stupid idiot" and then voting to end the filibuster. Susan Collins said that she did not want to change the rules of the Senate, but she fell in line.

Neither of them could even muster the courage to say to McConnell and Trump: "You both know that my vote won't change anything, so don't worry that I'm taking a public stand. I get to save my public image, and you still get your man."

McCain and Collins now both look like craven hacks. I am betting that they do not like to look like craven hacks. They might now try to look for ways to look less like craven hacks by showing real spine in the future. Or maybe not, but at least they were forced to show their willingness to bow down before Trump on a high-profile vote.

As I argued shortly after the election, the Democrats are in a desperate situation, and desperate times call for desperate measures. Inevitably, that means picking fights that they will lose, both to show voters that they actually stand for something and to find strategic advantages where they can be found.

Even so, I expected Senate Democrats ultimately to cave on the Gorsuch nomination. They did not. I did not expect liberal-ish pundits to fall for the Bork myth or to mock Senate Democrats for losing, but they did. I do not know if this is a harbinger of things to come, but it certainly is a big change from what we have become accustomed to seeing.

Neil H. Buchanan is an economist and legal scholar, a professor of law at George Washington University and a senior fellow at the Taxation Law and Policy Research Institute at Monash University in Melbourne, Australia. He teaches tax law, tax policy, contracts, and law and economics. His research addresses the long-term tax and spending patterns of the federal government, focusing on budget deficits, the national debt, health care costs and Social Security.