3 February 2017
Senator Charles E. Grassley
Washington, DC 20510-1501
Washington, DC 20510-1501
Dear Senator Grassley,
We must now return to the vacancy on the Supreme Court that you and your Republican colleagues decided to leave vacant last year. President Trump has nominated a man with impressive qualifications, and yet the Democrats should move to block the nomination by a filibuster. The problem is that you have to defend the legitimacy of Judge Gorsuch’s nomination, not his qualifications. This is a problem for you and your Republican colleagues, but I have a way out I will suggest in this letter. But first, we have to examine how you arrived at this juncture where the Democrats would threaten the use of the anti-democratic device of the filibuster. They aren't usually inclined to play so roughly. They even suffered its use (and abuse) by Republicans when you were in the minority. What’s the problem?
The problem arises from the decision of you, Senator McConnell, and your Republican colleagues to refuse hold hearings on the nomination of Judge Garland (as you have said of him, an extremely well-qualified jurist). You attempted to justify this dereliction of your constitutionally-mandated duty by arguing that the matter should be left until after the election. Senator McConnell argued that the American people should “have a voice” in the selection of the next justice, and Senator Kelly Ayotte said “Americans deserve an opportunity to weigh in” on the matter.” Of course, all of this runs contrary to the original intent of the Constitution, a sad commentary on the value of originalism and an ironic approach to filling the seat of originalism’s great proponent, Justice Scalia.
The people “spoke” (by their ballots), and most of them didn’t speak in favor of Mr. Trump. In fact, only 46% voted for Mr. Trump, and he finished second in the balloting, losing by almost 3 million votes. The legitimacy of his election was further undermined by our knowledge that foreign agents (Russian) stole emails and arranged their release to aid his election. (When I was a Republican, Republican candidates didn’t have the support of Russian leaders. My, how times have changed!) And, of course, the unprecedented entry of the FBI into the election also undermines President Trump’s legitimacy. (It’s a good thing folks on the left aren’t as given to conspiracy theories as those on the right, isn’t it?) So, the American people—and most voters—despite these foreign and unprecedented influences, did not vote for Trump. Therefore, according to the logic of your party, we should wait until after the next election to fill this vacancy. Then, we hope, you’ll have a legitimate mandate from “the people.” You had an unquestionably legitimate and popular (and popularly-elected) president to fill the post, and now you have this mess. Mind you, I think that all of this is nuts, contrary to the intention of the Constitution—which worked to isolate judges from the political process—but I’m trying to think within the framework your party established.
You can argue (although it didn’t bother you before) that the Supreme Court needs the full nine members. But as your colleague Senator Cruz noted, “There is certainly long historical precedent for a Supreme Court with fewer justices,” as he expressed his willingness to leave Justice Scalia’s seat vacant, presumably indefinitely if Ms. Clinton had been elected. Senator McCain stated this fall “I would much rather have eight Supreme Court justices than a justice who is liberal,” so he, too, expressed his willingness to live with eight. And Sen. Richard Burr (R-N.C.) went further: “If Hillary Clinton becomes president, I am going to do everything I can do to make sure four years from now, we still got an opening on the Supreme Court.” Thus, since the referendum-like idea didn’t work out, the Senate could just leave the seat empty. “So, sue me!”, you can respond, and with all of the court vacancies that you left vacant from the Obama years, the backlog of cases will probably prevent the matter from reaching the eight-person court for years. Perhaps not such a bad strategy for you.
But you and Senator McConnell—perhaps intuiting that Mr. Trump would garner just enough votes to carry the Electoral College—can argue that you just wanted to wait for the next president to make the appointment, and we have new, lawful president, albeit one of doubtful legitimacy. And he’s made perhaps his most competent nomination yet to a high post. But the Democrats don’t like this nomination. Some of them won’t vote for Judge Gorsuch because they fear that he’ll add just another pro-big business, anti-government, and anti-choice voice on the court. They are a minority. But more importantly, others recognize that your dereliction of duty in ignoring Judge Garland’s nomination was changing the game in a naked grab for power and that, this requires retaliation. Allowing cheaters to escape unpunished sets dangerous precedents. The Democrats think that changing the rules of the game during the game is dirty pool; in a word, cheating. I agree; in fact, I believe that it’s downright un-American. (Aren’t you glad now that the House did away with that committee?)
So, if—as they should—the Democrats filibuster the nomination of Judge Gorsuch, what should you do? “End the filibuster!” I imagine you’ll say (less unnerving the President Trump’s “use the nuclear option!” Thank you.) I have to admit that I’ve called for an end to the filibuster as an anti-democratic practice with no constitutional justification. Both parties have abused this process, although the Republican Party has once again taken the lead in making Congress an ineffective and lowly-regarded institution through its use of the filibuster. And not wanting to be a hypocrite (I’m not a politician) and not wanting to suffer the cognitive dissonance of self-contradiction, I have to respond. And I respond that the filibuster should be ended—just not yet. (St. Augustine pioneered this move.) Its end should come as a part of a grand bargain.
Here’s the grand bargain. You and Senator McConnell go to President Trump and report that the Gorsuch nomination cannot come up for a vote because of a filibuster. You could exercise the “nuclear option,” says President Trump, but the filibuster has been a very useful tool for Republicans, and you don’t want to lose it. "We’ll be in the minority again, perhaps soon". (I’m rooting for 2018 myself.) Now the light will go off in each of your heads at the same time: we could change the rules now, and then change them back later! But someone might have a twinge of conscience —I hope it’s you—it certainly won’t be President Trump—a pained thought of being recognized as a cheater, and the realization of the loss of an opportunity to put principle above party in the interest of the nation. You demur. Instead, you offer this.
“I’ve spoken with Senator Schumer (the minority leader) and he will agree to this plan: You will withdraw the nomination of Judge Gorsuch (don’t tell him he’s fired, that’s not it). You nominate Judge Garland. I will hold a hearing on his nomination, and we will vote on it. The vote will be on whether he’s qualified to sit on the court. No party will use the filibuster; in fact, for the good of the Senate and as a matter of democratic integrity, we’ll end it. Then, at the next vacancy, you can once again nominate Judge Gorsuch. We will hold hearings and vote on his nomination. The vote will be on whether he’s qualified to sit on the court. No filibuster.” You’ll conclude, “Mr. President, this is a win-win outcome.” He’ll respond, “What the hell is that?”, but pay no heed.
There you have it. Share this with your colleagues. It’s a great plan.