In 2013, Texas Senator Ted Cruz shot to stardom by giving a 21-hour speech on the Senate floor, calling on Congress to defund President Obama’s signature health law, Obamacare. On Tuesday evening, Oregon Senator Jeff Merkley took a stand against President Trump’s Supreme Court nominee, Neil Gorsuch. As in Cruz’s case, Merkley’s speech is not a true filibuster, but a chance to
announce his 2020 presidential candidacy stand publicly for something he believes in.
Just before 7 p.m. Eastern on Tuesday, Merkely took the floor, announcing: “I plan to keep speaking for quite a while longer, as long as I’m able.” When he ended the speech Wednesday morning, he had pontificated for more than 15 hours.
— Senator Jeff Merkley (@SenJeffMerkley) April 5, 2017
In an effective summary of his speech, the Oregon senator tweeted, “Make no mistake: this is a stolen seat — & if this theft is completed, it will undermine the integrity of the court for decades.”
Make no mistake: this is a stolen seat–& if this theft is completed, it will undermine the integrity of the court for decades. #StopGorsuch
— Senator Jeff Merkley (@SenJeffMerkley) April 4, 2017
In defense of Merrick Garland, the judge whom President Obama nominated after Justice Antonin Scalia’s untimely death last year, Merkley held up a chart showing Supreme Court justices who were nominated during an election year, and who were given an up or down vote by the Senate.
Tellingly, however, the last such case happened in 1932, when President Herbert Hoover nominated Benjamin Cardozo to the Supreme Court in February, and the Senate confirmed him. When Obama nominated Garland last February, Senate Republicans attacked him for violating an 80-year tradition, that a president had not nominated a judge for the Court in an election year since 1932.
The fact that Merkley’s list ended at 1932, and that President Franklin Delano Roosevelt, through the New Deal and his own botched Court-packing scheme, represented a historic politicizing of the nation’s highest Court. The fact that presidents kept this tradition after FDR made the Court even more political than before might be an accident of history, but it is an important point to consider in today’s similarly politicized climate.
Furthermore, many Democrats and liberals have brought up the nomination of Supreme Court Justice Anthony Kennedy as an example of Republicans’ hypocrisy on this issue. Nothing could be further from the truth. While Kennedy was confirmed in 1988, an election year, Reagan had nominated him in November of 1987.
But the seat Kennedy took was vacated back in June of 1987, when Lewis Powell retired. Democrats had asked leaders to form “a solid phalanx” to prevent any Reagan nominee from reaching the Court. Reagan’s first nominee for that slot, Robert Bork, was vehemently opposed and ultimately blocked by Senate Democrats, including Joe Biden, who reversed his original decision to support Bork.
Make no mistake, the current Democrat fight against Gorsuch is motivated more by political theatrics than by anger at the seat being allegedly “stolen” from Merrick Garland.
While Senate Democrats have threatened to filibuster Gorsuch’s nomination, which requires 60 votes before proceeding to a simple “yes” or “no” confirmation, Merkley’s speech was not a filibuster. It was never expected to delay the debate, scheduled for later on Wednesday, or the votes expected Thursday and Friday.
Even that coming filibuster might be in doubt. Fox News reported that Gorsuch counts 55 supporters in the Senate: all 52 Republicans, and three moderate Democrats from states Trump won last November: West Virginia’s Joe Manchin, North Dakota’s Heidi Heitkamp, and Indiana’s Joe Donnelly.
In addition to these, Michael Bennett, who represents Gorsuch’s home state of Colorado, has said he will not join the Democrat filibuster, though he has not said whether he will ultimately vote for Trump’s nominee. That brings the count to 56, a mere four votes short of blocking the filibuster.
This is yet another reason to compare Merkley’s marathon speech to Ted Cruz’s speech back in 2013. Cruz gave the speech for a few reasons: to publicly declare his opposition to Obamacare, to build his profile as a firebrand within the party, and to rally Republican support for a failing measure.
Like Cruz, Merkley is in a safe seat (he beat his Republican rival by 20 percent in 2014) and can therefore afford to build his brand by taking a strong partisan stance. This shot at progressive stardom was confirmed by the responses of liberal senators and groups who praised Merkley.
The liberal firebrand Massachusetts Senator Elizabeth Warren tweeted, “Go, @SenJeffMerkley, Go! #StopGorsuch #HoldTheFloor.”
— Elizabeth Warren (@SenWarren) April 5, 2017
New Jersey Senator Corey Booker tweeted his thanks.
Thank you Jeff. https://t.co/QKftc9boZb
— Cory Booker (@CoryBooker) April 5, 2017
The pro-abortion group NARAL Pro-Choice America also congratulated Merkley.
— NARAL (@NARAL) April 5, 2017
Planned Parenthood President Cecile Richards praised him for “fighting for women’s rights … while you were sleeping.”
— Cecile Richards (@CecileRichards) April 5, 2017
Even liberal actor Mark Ruffalo thanked Merkley “for pulling an all night Jimmy Stewart. By using your platform for moral authority you bring strength and hope to all.”
@SenJeffMerkley Thanks for pulling all night Jimmy Stewart. By using your platform for moral authority you bring strength and hope to all.
— Mark Ruffalo (@MarkRuffalo) April 5, 2017
Merkley isn’t quite ready to run for president in 2020, but like Cruz in 2013, he has a true shot at partisan stardom from this speechibuster. If only he were more charismatic, or just more relaxed and fun, willing to do something crazy like read Green Eggs and Ham…
Also like Cruz’s effort to defund Obamacare, it is very unlikely that Merkley’s push to defeat Gorsuch will succeed.
Even if the Democrats can filibuster Gorsuch’s nomination, Republicans can use the so-called “nuclear option” to force a vote on Trump’s nominee. This would be a blow to Senate tradition, but it spells ultimate doom for Democrats’ attempts to stop Gorsuch. Furthermore, if the Democrats force Republicans to take the “nuclear option” on Gorsuch — who is a humble, able, committed originalist willing to follow the law rather than make it — it could cost them the authority to stop a later Trump nominee, who might not be so humble.
Throughout his hearings, Gorsuch has demonstrated intelligence, poise, restraint, and virtue. The man is a consummate judge, dedicated to applying, not rewriting, the law. If Democrats fall on their swords against him, they will lack the moral authority to stand up to Trump’s next choice, who is unlikely to be quite as qualified as the man before them. Then, even Merkley might regret his decision.