Primary Concerns for Senate Democrats Supporting Gorsuch Cloture Vote

Now that they are relegated to minority political status in the District of Calamity, the progressive wing of the Democrat party feel free to impose purity tests and try to effectively take over the party.

One of the litmus tests for a Senate Democrat to show their loyalty towards liberalism is to oppose President Trump's choice for the Supreme Court, Judge Neil Gorsuch.  

Senate Democrats may stew over a "stolen" SCOTUS pick, because the Senate Majority in the 114th Congress refused to hold hearings and scuttled former President Obama's lame duck Supreme Court pick Merrick Garland. This Senate Advice and Consent through inaction followed a 70 year precedent of not confirming SCOTUS picks in the last year of an Administration so as to let voters decide.

However some Democrats are so obstreperous that they will not meet with Judge Gorsuch, like Senate Minority Leader Chuck Schumer (D-NY).  Those who consented to meet Judge Gorsuch have been charmed by him and his impeccable legal credentials.

Liberal advocacy groups like Credo Action felt emboldened by Schumer's antipathy approach thus they warned wavering Senate Democrats that if they so much even consented to a Cloture vote for Judge Gorsuch that they will face primary opposition in the 2018 cycle.

So Democrats opposed Republicans effectively filibustering Garland through a no vote yet they want to do the same thing to Judge Gorsuch.  As Chris Plante is wont to say, if it wasn't for double standards, liberals would not have any at all.  Ironically, filibustering will be futile thanks to the legacy of  former Senate Majority Leader Harry Reid (D-NV) who invoked the nuclear option in 2013.  Now all the current Majority Leader Mitch McConnell (R-KY) needs to do is expand the rule change in medias res to include Supreme Court nominations. 

From an objective standpoint, Democrats threatening to primary vulnerable Senate Democrats to just allow a vote for a Supreme Court Associate Justice seems counter-intuitive.  The Scalia replacement would not drastically change the balance of the court, so why come out with guns blazing against your own for a goal which is note a game changer.  

Although Democrats only need to garner three net seats to regain control of the Senate, they face a tough election cycle in 2018 with 23 of 33 seats up.  Incumbents have a much easier time fund raising and winning general elections, so why take out your own (even if they stray from the party line on some issues)?  Furthermore, ten of the Senate races are Democrats in states that voted strongly for President Trump.  Threatening to primary Democrat incumbents pushes them further to the left, which was not were the vox populi seems to be in those states.

If opposition from the left seems too strident, some incumbents like Senator Joe Manchin (D-WV) and Senator Heidi Heitkamp (D-ND)  might conclude that the grass is greener on the other side of the aisle. Even if they do not politically defect, they may be emboldened to vote their conscience to keep their integrity or burnish their independence from a progressive purge to keep their seat.

It would seem prudent for progressives to not play hardball on this Supreme Court nomination but fight like hell if a senior liberal Associate Justice (like 83 year old Ruth Ginsburg or 78 year old Stephen Breyer) or majority maker 80 year old Anthony Kennedy decided to retire.  But it seems that progressives do not want to leave any powder in reserve for such a contingency.  

Even though objections to the Scalia replacement were packaged as being objections to Garland's no vote or automatically opposing President Trump's pick, it seems that progressives are concerned that reversing Roe v. Wade and throwing the adjudication of abortion back to the states is at stake. 

Smart SCOTUS Oppo Strategerie (sic)

As sagacious of a strategist Committee for Justice President Curt Levey may be, it seems that Democrats in the District of Calamity have taken a different tact.

Senator Jeff Markey has declared that there must be payback for the 114th Congress not approving lame duck former President Obama's pick of Merrick  Garland.  Senate Minority Leader Chuck Schumer )D-NY) has declared that he will not work with President Trump unless he utterly does the Democrats' bidding.

In years past, protestations of non-cooperation might have caused Senate Republicans to buckle and moderate.  But thanks to former Senator Majority Leader Harry Reid (D-NV) and the Reid Rule, cooperation for cloture on appointments is now moot.

Democrats may bluster that only needing a majority was not intended to be for Supreme Court nominees, but that is after the fact dicta.  Per Hugh Hewitt and Senator Ted Cruz (R-TX), the Reid Rule is about the Senate only requiring a majority to change the rules mid-session. Besides, Reid himself intimated that he showed his Democrat Senate colleagues how to steamroll the GOP with this rule, even for High Court picks Even liberal Senator Chris Coons (D-DE) admits that the filibuster is no longer an emergency brake on nominations.

Under normal circumstances, a newly elected President has little opposition to his first Supreme Court nominee, especially early in his first term.  But these are not ordinary times.  Democrats are wont to hyperventilate about anything that the Trump Administration does, and seem happy to escalate any altercation to the extreme.  Democrats have sought to slow walk Trump Administration confirmation hearings, going so far as to not show up at Senate Committee Hearing votes.

Senate Majority Leader Mitch McConnell (R-KY) has been chary to confirm that Republicans will invoke what was once called "the nuclear option", but he has been steadfast in assuring the public that Trump Administration will be confirmed.  The same is true regarding  President  Trump's pick for the Supreme Court.

The dangera that Democrats have in protesting so vehemently to everything in the early Trump Administration and calling supporters out to the ramparts is three fold.

 First, they risk over-exhausting their partisans.  You can only cry "the sky is falling" only so often before it loses its desired effect.

Secondly, Democrats are not picking their battles wisely.  It is not only the incoherence of opposing everything, but in going to the mat for losing causes.  Because of the Reid Rule, President Trump will get his Cabinet appointments and most likely the first Supreme Court pick.  By fighting so hard on the nominations, it may serve to demoralize their partisans.

Thirdly, the hyperventilating opposition may play well for the progressive base of the Democrat Party but it may serve to alienate white, working class Democrats who voted for Trump in 2016 on positions and personnel with which they agree.

Historically, Democrats do not turn out in mid-term elections.  In the 2018 election cycle, Democrats have 23 seats up in the Senate, including in states which voted for Trump.  Such strident opposition, epitomized by an obstructionist approach to Trump's first Supreme Court pick (even before he is announced) may solidify a one time "what have you got to lose" vote to a realigning "my party has left me" metanoia, thereby making  Blue Dogs and DC Democrats politically endangered species. 

When the Supreme Court Acts Like Politicians

The Supreme Court will start consideration of cases in its new term on the first Monday in October.  A Federalist Society panel previewing the Supreme Court's new term expected that SCOTUS will have a diminished case-load during the 2016-2017 term as it awaits confirmation of  Associate Justice Antonin Scalia's replacement. It  is assumed that the Supreme Court is avoiding some controversial cases to avoid having a 4-4 tie, which does not establish precedent and upholds the Appeals Court ruling.

There are several schools of thought concerning the vacancy on the Supreme Court.  If Democrat Presidential nominee Hillary Clinton (D-NY) wins the election but if the Republicans retain control of the Senate, there is good reason to believe that Obama designee Merrick Garland will be confirmed during the Lame Duck session.  Although Senate Majority Leader Mitch McConnell (R-KY) claims that Lame Duck sessions are not appropriate for SCOTUS confirmations, the thinking from the GOP may well be to go with the Devil they know rather than one which they don't know.

Some Democrats believe if they win both the White House and the Senate, then Hillary would want to install her own (presumably more progressive pick).  But some optimistic institutionalists hold fast to the notion that Mrs. Clinton would abide by the process and still push forward her predecessor's choice.  Either way, in such a scenario, it would be expected that there would be a lengthy evaluation and vetting process to achieve Senatorial Advice and Consent, thus keeping the evenly divided court well into the term.

Ass. Justice Anthony Kennedy

A more philosophical question is what should be the role of the Supreme Court.  A common rallying cry in Presidential elections is control of the Supreme Court.  Justice Scalia's passing in February levels an ideologically fractured SCOTUS (four liberals, three conservatives and Ass. Justice Anthony Kennedy), but with indications that progressives are itching to be more activist. 

Chelsea Clinton has mentioned on the hustings that openings the Supreme Court will allow her mother to fundamentally redefine the parameters of the Second Amendment.  

Most likely there would be no outright repeal of this fundamental freedom given by God, but it would take a narrow reading of the organic law and assert that this right is limited to organized militias. This would effectively make it a dead letter, like the Tenth Amendment.

So instead of being final arbiters of cases, the Supreme Court would act like a super-legislature, only they are unelected (thus unaccountable) and there is virtually no way to upend their ukases.

Senator Ted Cruz (R-TX) while campaigning for President proposed having retention elections for the judiciary, as they do in Iowa.  That sounds more appealing on the campaign trail then it would be applicable in the Federal City. However, it does voice the frustration of many Americans who feel cut out of the governing process.  California twice approved referendums defining marriage (which was primarily a state issue), yet in Obergefell, the Supreme Court overturned the will of voters under a Right of Dignity interpretation of the Fourteenth Amendment and then expanded this right of same-sex marriage to all 50 states.

Two longer shot prospects not considered by judicial watchers are the possibility that Republican Presidential nominee Donald Trump (R-NY) might win and actually live by his promise to nominate conservative judicial candidates.  

The other way to remedy judicial tyranny would be limitations on Article III power.  While Congress can theoretically reign in lower courts, it is unlikely to do so. This would leave such reformation to application of an Article V Convention of States.  While the Article V safety valve for a Convention of States has been in place for 227 years, it has never been successfully invoked yet. But as more and more power is taken away from states yet they are saddled with the brunt of implementing dictates from the District of Calamity (sic), this may become a more feasible possibility.