Dan McLaughlin:
Democrats and liberals casting about for a justification to filibuster Neil Gorsuch’s nomination to the Supreme Court have had a hard time of it. Lacking any basis to criticize Judge Gorsuch himself, they need some theory of why the Senate should not confirm a highly qualified nominee, made by a freshly elected president, and supported by a majority of the Senate. They are now on their third argument, and it’s no better than the first two.
First up was the argument that the seat was “stolen” from Merrick Garland. But as I detailed at length here, that ignores the relevant history: Supreme Court seats have been held open by the Senate for the new president to fill on seven prior occasions, and of the nine prior times that a president has sent a nominee to a Senate controlled by the opposite party in a presidential election year, five were left open for the next president, three were confirmed only after the election in favor of the party that won the election, and just one (Melville Fuller in 1888) was confirmed. (I dealt further with specific complaints about Garland not getting a hearing, and the effort to use Anthony Kennedy as a parallel, here).
Next up was Chuck Schumer’s claim that the Senate traditionally requires 60 votes for a nominee to get confirmed. As I detailed here, this is simply false, as six prior nominees have been confirmed with less than 60% support in the Senate, including two members of the current Court – and the only nomination stopped by a minority of the Senate was a bipartisan filibuster of an election-year nominee whose ethical problems resulted in his resignation from the bench a few months later.
Having failed laughably at both of these justifications, Democrats have chosen as their closing argument a frontal assault on the legitimacy of the 2016 election. Harvard Law professor Laurence Tribe gives a flavor of the mood of this stuff:
As more emerges re @realDonaldTrump’s theft of the presidency it gets clearer that we mustn’t keep calling him POTUS. He’s a usurper.
— Laurence Tribe (@tribelaw) March 31, 2017
The specific argument being made is that Trump should not have the power to fill a Supreme Court vacancy until the FBI concludes its investigation of Russian interference in the election:
If i were Dems in Senate I would make a deal with GOP and say when investigation of Trump and Russia is finished, they will not filibuster.
— Matthew Dowd (@matthewjdowd) April 1, 2017
This is nonsense, and dangerous nonsense at that.
First, as Andrew McCarthy detailed in a must-read piece over the weekend, the Democrats are now doing exactly the thing they accused Trump of doing back when they thought they would win the election: constructing a theory of a “rigged election” with most of the same elements that Trump was talking about. They have become exactly what they claimed was bad and dangerous – and, as McCarthy also notes, they are doing so almost entirely on the basis of information the voters already knew at the time of the election. The Democrats’ repeated use of the deliberately deceptive phrase “hacked the election” has already convinced a majority of their voter base, with no evidence at all, of the outlandish conspiracy theory that Russia tampered with the vote tabulations. I warned on Election Day that Democrats were not preparing their voters to accept the possibility that a Trump victory was a possible, democratically-legitimate outcome, and filibustering Gorsuch on this basis is surrendering to their angriest and most paranoid elements. Doing so on the theory that Trump is a usurper who has seized power illegitimately is a poisonous argument, but do they really believe it? If they did, they’d expel Joe Manchin and Heidi Heitkamp from their own party, since both have said that they will vote to confirm Gorsuch.
Second, what exactly do Democrats say was done to render the election illegitimate. They offer no evidence, nor even a theory, of collusion by any particular person in the Trump campaign with any particular Russian activity. And what activities are they talking about? As David French has neatly summarized the Russians’ efforts: