March 14, 2017

ED MORRISSEY: Senate Dems “paralyzed” over Gorsuch confirmation.

The problem for Democrats is as obvious as Gorsuch’s qualifications, and it’s that Gorsuch’s qualifications are so obvious. That hasn’t stopped Democrats from hammering Republican nominees to the Supreme Court in the past, such as John Roberts, Samuel Alito, Clarence Thomas, and Robert Bork. Gorsuch’s record gives them no real hook for those kinds of attacks on substance, and his personality makes it difficult to find a way to attack him personally, too. The charm offensive on Capitol Hill has been a rousing success.

So far, the only opening Democrats have is the Chevron doctrine, which Gorsuch has questioned. In Chevron, the Supreme Court held that where the law has ambiguities, deference has to be granted to federal agencies for interpretation. If Chevron got reversed by a later court more interested in forcing textual application of the law and forcing Congress to address ambiguities, it would cut sharply into the authority of these agencies, on which progressives rely for activist governance. (The irony of this, as Steven Hayward pointed out at Power Line, is that the environmentalists lost in the Chevron decision.)

Democrats are expected to hit Gorsuch on Chevron and on the application of stare decisis, as well as the usual issues of abortion and euthanasia, because … that’s all they’ve managed to dig up in six weeks — at least publicly. That esoteric issue won’t keep Americans glued to their TV screens during the confirmation hearings. If that’s all they’ve got, small wonder they’re “paralyzed.”

Senate Democrats have another problem. They had the Republicans over a barrel, or so they thought, when President Obama nominated Merrick Garland to fill Antonin Scalia’s vacancy. Republicans could either confirm a sort-of right-leaning judge who was squishy on the Second Amendment, or risk dealing with the next Wise Minority Statist that President Hillary Clinton would surely nominate.

Instead, the GOP accepted the risk and stood firm — and now the Democrats are the ones over a barrel. Their choices boil down to two extremes. They can step aside and allow the “Scalia seat” to be filled by a justice who is about as conservative as Scalia was. Or they can stonewall/Bork Gorsuch, and risk the Republicans employing the Reid Option. The Democrats would lose their filibuster for the entire four-to-eight years of President Trump, during which they could probably expect the vacancies of one or two liberal SCOTUS judges.

In their situation, you might feel paralyzed, too.