Capitol Hill Watch: Short-Sighted Schumer on SCOTUS

On Friday, April 7, around 7 p.m., Neil Gorsuch — President Trump’s nominee for the Supreme Court seat formerly held by conservative icon Antonin Scalia, who died last February — will be approved by the Senate in a straight up or down vote.

Here is what brought us to this point today, April 6. Republicans could not reach the 60 votes required to stop a filibuster by the Democratic minority using the procedure known as cloture. Senate Majority Leader Mitch McConnell (R-Kentucky) then called for a vote to eliminate the 60-vote requirement for Supreme Court judges, just as then Senate Majority Leader Harry Reid (D-Nevada) did in 2013 for all other federal judges.

It’s called the “nuclear option” and it only took a simple majority to pass — which it did on a straight party-line vote, 52-48. It was up to Senate Minority Leader Chuck Schumer (D-New York) whether or not to provoke this change.

The drama is important. The choice of Supreme Court justices, who hold the position for life, impacts court decisions for decades. But it’s also been hyped. A little perspective is needed.

Is the option really “nuclear”?

Not really — unless you think anything that changes long-standing protocol creates permanent toxic waste. That wasn’t the case when Reid did it; it just made it easier for a simple majority of whichever party controlled the Senate to approve or reject a president’s nominees.

When the Senate and the presidency is held by the same party, as it was in 2013 by the Democrats and now by the Republicans, it certainly seems like a winner for that party. When a president’s party is in the minority in the Senate, or doesn’t hold a 60-plus majority, then it’s a problem. Clearly, it makes the whole procedure more partisan and less senatorial.

But the drama today is not because the nominee is a bad one. Everyone agrees that Gorsuch is a good man and a totally reasonable conservative to replace Scalia. Up until now, Schumer has been also a reasonable man: like President Trump a New Yorker, used to New York hyperbole; a Democrat known as a straight-talking dealmaker; a realist from an extremely liberal city, who in making decisions considers a fictional middle-class couple he calls “the Baileys.”

So why is Schumer now forcing Republicans to consider the nuclear option? Does he think it will hurt them? (It didn’t hurt Reid.) Is it just sour grapes because the Republicans not only won the election but also prevailed when they took the huge risk of holding up President Obama’s nominee? Or is it a stalling tactic to keep a nine-person court — with the addition of Gorsuch — from ruling on some of this session’s last issues, possibly including Trump’s travel ban?

Whatever his reasons, it’s a losing game for the Democrats and short-term thinking by Schumer. The liberal Democratic agenda could really be hurt not by Scalia’s proposed replacement but by the next one (likely for one of the aging liberal justices), possibly an extreme conservative. One could imagine that Schumer’s Baileys would tell him to hold his guns and to save his ammo for the next time.

Now the “health watch” begins on the three 75-plus-year-old liberal judges. Hopefully, by 2020 the Senate will have found a new path toward comity.