The Supreme Court as Partisan Tool

The judicial confirmation process is mirroring the mess in Congress.

Comments: 233

  1. The republican plan to take over the judiciary was launched during the Obama administration. Because of the slow walking and blocking the Obama federal and district court nominees Trump inherited 103 judicial vacancies from the Obama administration as opposed to 54 inherited during the Obama administration from the Bush administration. It would have been more had the Democrats not disallowed the filibuster for these judge positions. The refusal of the republicans to give Garland, a moderate republican a hearing, is a declaration by the republicans to use power politics to make the courts an absolute pro-corporate rubber stamp. The administration and congress are in the hands of an extremist right wing party. America, behold your government. Isn’t it wonderful!

  2. Mark, you are forgetting history. "The Republican plan to take over the judiciary was launched during" -- the REAGAN administration. Reagan's Republicans initiated political litmus tests for their nominees, who were vetted to be (a) right-wing (not truly conservative; they care nothing for conserving what we have) and (b) young enough to tilt the courts for decades. Every Republican president since then, including young Bush, has carried out the same policy.

    It isn't mainly the president responsible this; the Republican party and its associated organizations like the Federalist Society (there are many, well funded) have an organized process to find and put forward right-wing ideologues favorable to big business and the billionaire class. They have the money to do it -- naturally enough.

  3. All true, but the only solution is for more Democrats to get elected, despite the Republican voter suppression and gerrymandering.

  4. Thanks Mark for the documentation, and Thomas Zaslavsky for reminding us this has been going on since 1980.

  5. "What matters is that Americans believe they are governed by law, not by whatever political party manages to stack the Supreme Court."

    EIther that, or everyone will be quite happy if their own political party manages to stack the Supreme Court, and outraged if the other party manages to do it.

    The divisions in Congress do reflect the divisions in the country, and many voters are highly partisan.

  6. Think about this, Jonathon. The media keeps the red/blue state, democrat/republican disagreements front and center and have been largely responsible for the disharmony in OUR America.

    The article says, "That leaves it to Democrats to consider whether the filibuster is worth saving." NO. What about America first? What about the fact that every single person elected pledges to uphold the United States Constitution? That pledge leaves it to every lawmaker of every persuasion to decide if democracy in America is worth saving. Are their children and grandchildren's lives worth saving? Do they think WW3 is a good idea? Do they think America should be a radical christian nation constantly at war?

    Today, once again, I have faith that there are enough Good, Honest, America-loving lawmakers to preserve democracy in America. We will see.

  7. The Times raises some very good points here. The arguments presented are valid but I fear that they don't go far enough in assessing the current situation.

    The Senate is broken. The Republicans led by McConnell broke it into pieces. The Democrats may have chipped the china, but McConnell smashed the all the plates. It is no longer a deliberative body. That being the case, the filibuster can no longer serve as a tool to encourage compromise and cooperation. It may die soon. Once it is killed for the Supreme Court, it will be killed for all legislation.

    The Times asks if the Democrats should withhold the filibuster to block a renegade justice in the future. Gorsuch might be that justice. He has stated that he is against the administrative state. That is a dead give away that he is Bannon's pick. This cabal wants all rules to be enacted by legislation only. This is not possible to do in our extremely complex, diverse and technological society. It is not possible to have laws that cover all aspects of society. That's why we have judges to interpret and apply the law. That's why we need administrators to work within the framework of the law.

    Gorsuch is then another fanatical ideologue. He may be worse than Scalia because even Scalia recognized the need and value of an administrative corps.

    Whether the filibuster is used this time or not may therefore be a moot point. The Senate no longer functions with it. It just doesn't function.

  8. Mr. Rozenblit,
    Excellent analysis.

  9. There is no reason to accept any claim by Gorsuch that he wants "all rules to be enacted by legislation only" (or any such claim by Bannon either). The Republican members of the Court showed their contempt for legislation by overturning critical parts of the Voting Rights Acts. This is not about ideology, it is a battle for raw political power.

  10. Simply put, if a President in the final year of his term does not deserve to have a Supreme Court nominee considered, then a President who lost the popular vote, who has an approval number is the low forties (significantly lower than the President that he replaced), who is currently entangled in an investigation into whether one of America's traditional enemies interfered in our last election, on his behalf, and remains the laughing stock of the civilized world (with, according to the latest polls, 52% of Americans saying that they embarrassed to have him as President) certainly does not deserve to have his nominee confirmed.

    Majority leader McConnell set this crisis into motion during President Obama's tenure, via his relentless obstructionism; and now when the tables are turned, Majority Leader McConnell will be responsible for the continued devolution of the Senate.

    Mitch, take a bow. Your triumph will be short - and your shame eternal.

  11. The turtle of the Senate will not be judged kindly by history.
    Wear it, Mitch.

  12. No. Harry Reid broke the Senate. 22 times the majority party in the Senste has blocked a SCOTUS nominee in the last year of a presidency. And Chuckles Schumer filibustered Miguel Estrada from the DC circuit 7 times because he was "especially dangerous because he is a Hispanic."

  13. Yes but the Republican Party is the preferred partisan political party of a majority of white voters. Winning 57%, 59% and 58% of that majority American cohort in 2008, 2012 and 2016. In 2016 Trump won 63% of white men and 54% of white women.

    Hillary Clinton managed to lose a Presidential nomination to a black man named Barack Hussein Obama and a Presidential election to a white man named Donald John Trump.

    Hillary should take a bow for her terminal national election incompetence. Neither Bernie nor Joe could have done any worse. Hillary has no shame nor honor.

  14. 1. McConnell and his party are interested only in Republican power, not good governance and democracy.
    2. The Republicans for the last eight years opposed Obama tooth and nail, not out of any principle but only for partisan gain. The Democratic party cannot simply let them have their way, especially with Trump as their leader.
    3. The filibuster is not established in the Constitution or law, it is a traditional Senate rule. By giving a minority a veto over a majority it is obviously undemocratic, no matter who is in the minority. Politicos see this as important. Movie buffs see Mr. Smith Goes to Washington. Some people see Mr. Cruz singlehandedly holding up the government while reading Dr. Seuss. Most people don't care about Senate rules.

  15. Elections matter. You lost. As a former president once said.

  16. KPO'M You didn't win--the Russians did. The former president you quote won both the electoral college and popular vote with no help from America's enemies.

  17. "Elections matter. You lost."
    Which is exactly why President Obama's nominee a hearing and a vote should have happened. The term is four years, not three.

  18. If The Republicans could deny Judge Garland a vote using the dubious rationale that President Obama had less than a year to go until the end of his term in office, why can't the Dems do the same by claiming that The Donald will most likely will be impeached on grounds of treason before he's completed twelve months in office? Even if that prediction turns out to be not quite accurate, he would have only another three years and ten months- or, at most, seven years and ten months. Why not keep the seat open until the next president is elected? Or the one after that?

  19. Stu,

    Trump may well be on the way out but can he be charged with "Treason"
    for his actions before he became President ?

    That makes Mike Pence President, unless he too is charged with Treason.

    Then Mike Ryan becomes President, does he not ?

    Your time scale fails to include the distinct possibility that one or more
    of the Judges will die or resign.

  20. Obama was definitely going to be leaving office. Impeachment is very, very unlikely. The Republicans own our government.

  21. Presumably we are stuck with Pence in the event that Trump is impeached--not sure that he presents a better option! Beware of what you wish for....

  22. As far as I can tell, Mitch McConnell's 2009 pledge to obstruct rather than legislate during Barack Obama's term in office broke no formal Senate rule.

    In his unprecedented response to the election of Barack Obama, McConnell broke something far more profound: the expectation - from the founders all the way down to present citizens of good will - that Congresspersons will have an intention to govern rather than destroy.

    The framers of the constitution were blessed with political genius! But the democracy they invented requires fealty to a minimum standard of cooperation and good will among elected representatives.

    After witnessing Mitch McConnell's 8-year, coldly calculated institutional destruction, and in its aftermath, blaming the Democrats for ruining the Senate: who could blame Hamilton and Jefferson for not anticipating such treacheries as that?

  23. Republicans reportedly have 59 votes for ending the filibuster. So if they do change the rules, why not change the threshold from 60 to 59, rather than all the way down to 50? Gorsuch is confirmed and the filibuster is mostly preserved.

  24. Unfortunately fewer and fewer Americans believe they are governed by law. The Republicans are using political maneuvers like gerrymandering, voting interference , collusion with foreign governments and now the nuclear option. In addition,the president is using suspicious loopholes to avoid paying taxes and to increase his personal wealth through dubious financial transactions involving his family members.
    You can believe in the rule of law only if you trust the ruling party to enforce it. The current government is yet to earn that trust.

  25. The Democrats need to fillibuster until Trump is indicted in the Senate, at which point Gorsuch should withdraw himself as a candidate as he will be too tainted by his association with both McConnell and Trump to hold his head up in public.

  26. Gorsuch is already tainted by his association with Trump. Nothing can change that.

  27. Senator McConnell is going to be remembered for the rest of American history for his destructive behavior towards his own country.

    My growing worry is that his actions are bringing the end of American history - or at least the end of American global leadership - drastically closer.

  28. Not only that, but republicans are (of course, true to form) acting like they received a mandate in November - despite losing the popular vote by just under 3 million. This, too, adds to polarization.

  29. "Republicans like to say that Democrats' 1987 blocking of Robert Bork marked the beginning of the politicization of Supreme Court nominations..."

    It is helpful to remember that the Bork vote was 42 Senators voting in favor and 58 against; two Democratic Senators voted in favor and six Republican Senators voted against. This was not quite the strictly partisan vote some would have us believe.

  30. To add a bit more background, Wikipedia offers this:

    On October 20, 1973, Solicitor General Bork was instrumental in the "Saturday Night Massacre", U.S. President Richard Nixon's firing of Watergate Special Prosecutor Archibald Cox, following Cox's request for tapes of his Oval Office conversations. Nixon initially ordered U.S. Attorney General, Elliot Richardson, to fire Cox. Richardson resigned rather than carry out the order. Richardson's top deputy, Deputy Attorney General William Ruckelshaus, also considered the order "fundamentally wrong" and also resigned, making Bork the Acting Attorney General. When Nixon reiterated his order, Bork complied and fired Cox, an act found illegal in November of that year in a suit brought by Ralph Nader. The Justice Department did not appeal the ruling, and because Cox indicated that he did not want his job back, the issue was considered resolved. Bork remained Acting Attorney General until the appointment of William B. Saxbe on January 4, 1974.

    In his posthumously published memoirs, Bork stated that following the firings, Nixon promised him the next seat on the Supreme Court. Nixon was unable to carry out the promise after resigning in the wake of the Watergate scandal, but eventually, in 1987, Ronald Reagan nominated Bork for the Supreme Court.

  31. "Delay, delay, delay" was then-candidate Donald Trump's advice to Senate Republicans when it came to Garland's nomination.
    It is more than hypocritical for Trump to then turn around and say that he wants a swift, bipartisan confirmation for Gorsuch.
    People like Trump never consider that they can get clobbered by their own tactics.

  32. As a child, I remember learning that the Senate was the more deliberative chamber, the one that tended to pass more centrist legislation. I read that this often frustrated voters in the short term. I've lived through much hastily crafted legislation that passed the House but not the Senate, shielding us from the whims of the moment and poorly drafted bills.
    My understanding of the Senate's role with regard to the Judiciary is that Senators advise and consent. When both sides played fair, that meant acknowledging the right of the President to nominate. Consent was given when a sufficient number of senators viewed the nominee as "qualified", in part because of ratings by the American Bar Association, among others.
    I'm mad at Democrats and Republicans who stonewalled judicial nominees below the level of Supreme Court Justice. Our Judiciary branch has been hobbled for years by too many vacancies. The Senate has sullied its own reputation in the process.
    What can one side do when the other won't fill vacancies in large numbers, waiting till "their party" regains the Presidency?
    Sen. McConnell gave the Senate a black eye when he declared there would be no hearings for Merrick Garland. I waited for other Republicans to stand up for the traditions of the Senate, for acting as the Constitution instructs and as we have throughout our history. Very few did. I urge some to look beyond this moment, slow down, be deliberative, and keep the 60-vote requirement.

  33. You are mistaken about one thing. The stonewalling of other judicial nominations, which you blame on Democrats first, is actually a Republican specialty.

  34. Reid gave a black eye to the Senate when he refused to confirm Bush appointees after the Democrats took control of the Senate.

    When the Republicans had control of the Senate under Bush, seven Republicans agreed not to vote for the nuclear option and seven Democrats agreed to no filibuster except in extreme circumstances. This resulted in Bush making more moderate appointments than he might otherwise have done had the Republicans exercised the nuclear option.

    Where were the "moderate" Democrats in 2013 when Harry Reid exercised the nuclear option? Fair is fair. Obama was making far left appointments and the Republicans were filibustering. Obama and Reid had the power to cram down the choices and didn't see fit to moderate the appointments to satisfy the minority.

    When Obama nominated a leftist to SCOTUS, he got his payback. Trump will get to replace roughly a third of the judiciary during his first four years in office. Karma is a beach.

  35. I see absolutely no reason why the SCOTUS cannot continue with eight justices; if it was good enough for the GOP, it better well be good enough for the Democrats. It is worth keeping in mind that the issue of who gets appointed next to the court (liberal or conservative) was for many a key issue why they held their noses and voted for Trump. Can progressives afford a sustained and era-defining assault on liberal values if another Scalia or Thomas clone gets appointed?

  36. If it was a problem for the Democrats that there were only eight, Obama could have made a recess appointment. Congress was out-of-session when Scalia died. The appointment would have ended at the end of the year, and Obama could have made a new recess appointment that would have lasted for two years.

    The reason Obama did not do so was that if Garland or any other Obama appointment had been in office, the American people would have had six months of hard left decisions coming out of SCOTUS and it would have been impossible for a Democrat to be elected President in 2016.

    It was an easy choice for the Republicans in the Senate. If Republicans won the presidency, they would get to fill the slot. If Hillary won, no one she might appoint would be worse than Garland.

    Replacing Scalia with Gorsuch re-establishes the balance in SCOTUS. We will be back to four hard left, three conservative/originalists and two swing voters.

  37. Don't forget that despite your assertions about blaming Republicans for starting it with Garland, Ginsberg made the big mistake of injecting herself into politics by criticizing Trump last summer.

    It's very much a two way street.

  38. sheesh! She passed a remark and apologized for it.

    That's quite different from total obstruction by all of Congress for the better part of a year.

  39. You may recall that she acknowledged that what she did was a mistake and that she shouldn't have done it. Has anyone going the other way on your street ever acknowledged having made a mistake, or having ever been wrong about anything? No.

  40. Are you kidding!? False equivalency, ahoy! She made a single comment that came as zero surprise to anyone with a pulse and a working brain. Come on, the guy is a mentally unstable fascist who is in no way qualified to be president. We all know this. Her comment had no official power or authority-- she didn't actually *do* anything.

    That's in no way similar-in kind or in degree-to what that wrinkled turtle did.

    Oh, and she apologized.

  41. So-- Is there any way to hold the republicans accountable for not allowing a vote on Merrick Garland? If this approach can stand-- what on earth can we do to support democracy?

  42. There WAS a way. It was the November election. Democrats needed to gain 5 seats, they only gained 2.

  43. The way to hold elected officials accountable is to vote them out of office in the next election. The Republican Senators who refused to confirm
    Garland are doing exactly what the people who elected them wanted them to do.

    If Democrats don't like the end result, they can go ahead and elect more Democrat Senators. Have at it.

    If you do not like the fact that Massachusetts, Connecticut, Rhode Island and Maine have the same number of Senators as California, NY, Florida and Texas, get to work changing the Constitution.

  44. I don't know that it is necessarily a given that McConnell, at al. will proceed with the nuclear option. Yes, I know they are threatening to do that, and maybe they will, but surely they would also be a bit apprehensive about taking away the same privilege from their own party the next time they are in the minority.

    And in any case, as I noted in a comment to these pages yesterday, if Democrats never use the filibuster for fear that it might be taken away, then haven't they lost it already?

  45. One solution would be direct election of Federal Judges. The Wisconsin model for State Judges would be a good starting point.

  46. most real democracies have systems making stacking the court and gerrymandering non issues.

  47. As I recall, Judge Gorsuch has been rated a highly qualified by all oversight organizations such as the American Bar Association.

  48. band also as you recalled, but omitted, the ABA also loved Judge Robert Bork. That makes it s twofer, don't you think?

  49. As was Garland. How much did that matter to the GOP then?
    Nothing they do or say can change the fact that they brazenly STOLE the seat - well, other than nominating Garland himself or someone similar, but how likely is that?
    This mess is entirely of McConnell's doing, and his GOP brethren who aided and abetted the theft. For shame, forever!

  50. No, this mess was started by Ted Kennedy when he "Borked" that qualified judge. Plus, the Constitution states that a simple majority is adequate to seat a justice - the Senate, being allowed by the Constitution to establish its own rules dreamed up the idea of a super majority. I agree that Garland should have been seated on the Court, but again it all goes back to "Borking". The Dems will probably get Garland seated after the next presidential election. To me the important thing is to have a well respected and qualified person placed on the Supreme Court. The politics of this whole process is nauseous.

  51. If they use it, they lose it, s it's not exactly a useful tool any more, is it?

  52. It would be interesting if the nuclear option was used and if the Republicans then don't get the majority because a few Republican senators are so disturbed by the change to use the option, that they change their vote.

  53. We can only wish that would happen. It is very unfortunate that the 2 Republican Senators, by most accounts, care much more about party than country.

  54. I would think that it should take 60 votes to change the rules in the Senate. That it doesn't means that the Majority can always change the rules to suit itself.

  55. At one point, Senate rules required a 2/3 vote to change. IMO, the Republicans should, under the current rules with a simple majority, eliminate the filibuster completely, since the Democrats did under Reid for several classes of transactions. After any future loss of the Senate majority, during the lame duck session between the election and the end of the year, the Republicans should make a rules change restoring the filibuster. They should then make an additional change to the rules such that any future rules changes require a supermajority, thus restoring minority power. Just before they were going to become the minority.

    Partisanship is a problem for Democrats only when they are in the minority.

  56. Agree!

  57. In fact , to insulate judiciary from petty party politics, the appointment of judges should not be confirmed by open vote of the Senate. Rather, the Constitution be amended to provide that such appointments will be approved by judicial commission consisting of the President, two nominees from two main political parties, two senior most judges of US supreme court and two senior most judges of federal Circuit court of appeals.

  58. And what would be the chances of that amendment being adopted?

  59. The Supreme Court has always been a political institution and always will be a political institution. It is a pure myth that the Supreme Court is non-partisan. On most issues, the Republican-nominated justices vote one way and the Democratic-nominated justices vote the other way. We should strip away the veneer of impartiality, which has never existed, and force the justices to stand for retention elections on a regular basis.

  60. Correction: the four jurists appointed by Democrats always vote on a partisan basis. The Republican jurists over the last twenty years have never been anywhere close to predictable. Kennedy, Souter, O'Conner, and Roberts decisions have never been in lockstep with Rehnquist, Thomas, Alito and Scalia. And even the four who could be characterized as conservatives or originalists did not agree 100% of the time.

    If the Republican appointed justices voted on a purely partisan basis the way Democrats do, ObamaCare would have been shut down by SCOTUS (There is no severability clause. Once the Medicaid expansion was declared unconstitutional, the whole law should have been trashed.) Same sex marriage would not have been made the law of the land.

  61. Well, this is utter fantasy, but nice attempt to sound informed.

  62. If the democrats aren't willing to use the filibuster now then essentially it ceases to exist anyway, whether or not the nuclear option is chosen by republicans.

  63. If the Democrats refuse to use it now it it will cease to exist for them, but not Republicans.

  64. Gorsuch should be confirmed because the media consensus is that he is highly qualified. A filibuster will only make the Democrats look partisan and ineffectual.

    The sacrificial filibuster will pack a bigger punch if it is saved for someone who is actually unqualified.

    In terms of revenge for Garland, that clearly requires a majority in the Senate, at which point the Democrats can and should deny Trump any further confirmation hearings for the rest of his tenure.

  65. It's too bad that the Republican, politically-oriented SCOTUS does not have the courage to think beyond mere politics. They have an agenda and justice is not a concern.

  66. Mitch McConnell made up a theory that a president should not name a Supreme Court appointment in their last year, as the Justice should supposedly best reflect the will of the American people.
    Well, Mr. McConnell, the American people spoke. They overwhelmingly re-elected President Obama. And a margin of 2.9 million voted for Hillary Clinton over Donald Trump.
    So, by your own standards, Senator, Donald Trump is not the individual who should be filling the court.

  67. Actually as I imagine you know the theory was stated before Mitch by some democrats currently still around.

  68. The American people elected a Republican Senate majority in 2014 in order to support the Republican House in reining in a lawless President. Had the Republicans confirmed the leftist appointed by Obama, they would have lost the Senate as well as the Presidency in 2016. Trump posted his list of 21 prospective SCOTUS appointments. There are many people who voted for Trump explicitly because they did not want a fifth hard left justice. There are many other people who voted for Trump in the expectation that ObamaCare would be repealed, something the voters have demanded since 2010.

    The people of NY and California, although they may contain almost 25% of the nation's population, are not entitled to bully the rest of the country.

  69. ebmem
    "The people of NY and California, although they may contain almost 25% of the nation's population, are not entitled to bully the rest of the country."
    On the other hand, the people in the least populated states have every right to bully the rest of the country. Some logic.

  70. McConnell has not put trust in the law at risk, he has destroyed trust in the law. He was aided by the likes of Scalia but the coup-de-grace was administered by the immoral Senator from Kentucky.

    The solution to this problem is for Trump to withdraw Gorsuch and put forth a middle of the road, respected judge to be a swing vote rather than pushing a reactionary conservative. Not very likely.

  71. For many years, there have been four hard left justices who have always voted as a block on politically sensitive matters of law. There were three justices, Scalia, Thomas, Rehnquist and later Alito, who could be counted upon to vote based on what was written in the law. And two, appointed by Republicans: Kennedy, Souter, O'Conner, and later Roberts, who no one ever knew how they were going to vote until the decision was announced.

    We have not had a conservative court in decade. Republicans appoint moderates and Democrats appoint left wing justices. Garland is not a moderate. His decisions could accurately be predicted to be in lock step with the four far left justices. During his judicial career, he has never voted to constrain the executive branch, regardless of how far astray they are of any reasonable interpretation of the law. Democrat justices always vote on a purely partisan basis. Republican justices vote on the law as written, and tell the legislature to fix broken laws if they are not satisfied with the outcomes.

    Garland is not and never has been a moderate. If Obama had nominated a moderate, the Republicans might have been enticed to consider him. Obama had the option of making a recess appointment, as Eisenhower did on three occasions. The reason Obama did not do so was because after six months of partisan decisions from SCOTUS, it would have been impossible for a Democrat to be elected President.

  72. Obama lied in his state of the union message when he accused and insulted SCOTUS by asserting that they had overturned hundreds of years of tradition with their ruling on Citizens United. Their ruling overturned a single provision of a law that was less than ten years old.

    By pretending that the decision was based on partisanship, Obama destroyed trust in the law with a lie.

    Garland was not a moderate swing vote, he is a hard left liberal. Which would have changed the composition of the Court from four hard left, three right leaning and two who no one ever knows how they are going to vote moderates (Edwards and Kennedy) to five hard left, two conservatives and two moderates.

  73. The day Obama took office, McConnell began a policy of scorched earth partisanship determined to not approve anything by the Dems--even the health plan formerly known as Romneycare-a GOP idea.
    Gorsuch is not acceptable. The Frozen Trucker judgment in which a man's life was not worth a truckful of meat--we do not need a man like this on the court.
    McConnell can say: "The Dems made me do it" but with the Pres, and both Houses of Congress--he owns it.

    Nice epitaph: Mitch--the man who killed Congress: a body who is supposed to govern by consensus. (Your oath was to the nation--not to the GOP).

  74. The "scorched earth" policy of the Republicans did not begin until two years after the inauguration of Obama. You have a very selective memory. That was after the Democrats crammed down ObamaCare with not a single Republican vote. A bill that put one sixth of the US economy under Democrat federal control. After Obama insulted the SCOTUS in his state of the union speech with an outright lie. After he told the minority leaders that he won and didn't have to listen to anything they had to say. And after the American voters had rebuked the Democrats by taking the House away from their control.

    If you check back on the history of the Republican scorched earth policy, you would realize that it did not begin on day 1. The Republicans did not filibuster Obama's cabinet picks: they confirmed 6 on inauguration day and another seven within a week.

    In contrast, although the Democrats cannot filibuster Trump appointees thanks to Harry Reid, they have demanded their right to blather to an empty senate for 30 hours after the cloture vote, so have turned what should be one hour into two full calendar working days for Trump's nominees. Which means it took five or six weeks for 13 of Trump's cabinet members to be confirmed. And there are two remaining positions.

    You have forgotten that Obama promised to end partisanship and instead took Democrat control of two branches of government as an indication that he could ignore the Republicans.

  75. Harry Reid is the one who decided the minority didn't deserve a voice in the Senate, upsetting years of tradition. When he stacked the DC Court of Appeals, stealing two Bush seats, he laid the groundwork for the present gridlock, which the Republicans will clear up with a nuclear blast. Get over it.

    The Republican Senate minority in 2009 did not filibuster Obama cabinet appointees, confirming six on inauguration day and another seven within a week. Ten weeks into Trump's administration, he has 13 cabinet members approved, a milestone Obama reached at one week. The Republicans did not obstruct from day one. They waited until after the Democrats had abused their authority.

    RomneyCare is not and never has been a Republican program. It is what a Republican governor was able to convince a Democrat state legislature to approve. It was an appropriate state-level experiment that had already failed by the time ObamaCare was being debated. If something fails at the state level, it is hardly a rational idea to expand it to the federal level.

    It is unfortunate that you are misstating the issues in the trucker judgement.

  76. What about the people who put and kept him in office?

  77. And now, more than one year since Scalia passed, Republicans would have you believe that filling the Supreme Court is urgent? They were happy to sit on their laurels and leave it with 8 Justices this long. Please.

  78. Why didn't Obama make a recess appointment, as Eisenhower did on three occasions when he thought it unlikely the Senate would timely confirm.

    What advantage accrues to the Republicans by wasting any more time on getting Gorsuch approved? They have other work to do, not the least of which is getting Trump's other appointments confirmed, as well as voting on the stack of legislation the House has sent them. They need to work on an ObamaCare replacement acceptable to Republicans as well as a budget for the remainder of FY 2017, not to mention FY 2018 which begins less than six months from now.

  79. There’s a legitimate argument that a U.S. Supreme Court seat was stolen from Obama. But there’s also a legitimate argument that the entire character of the Court would change by swapping Scalia for Garland, and that while you can call it partisan excess, I don’t doubt for a second that today’s Senate Democrats under Chuck Schumer would do exactly the same thing in similar circumstances.

    If the filibuster for Supreme Court nominees is to be saved, then individual Dems will need to defy Schumer’s leadership to save it; because at this stage nothing else will. Schumer has set this up as the ultimate game of “Chicken”. After his actions, neither side can back down. That means the filibuster is toast for anything other than legislation – and I could see McConnell killing it even for legislation.

    If he took that TRUE “nuclear option”, Dems would be disengaged from our governance for years. That’s just not good. Passing and implementing legislation that half of us support and half don’t is an ideological cop-out. It’s easy to pass bills if you own all the marbles and no filibuster exists, but those bills can be reversed as easily as Obama’s executive orders with another flip of electoral outcomes. What lasts and has strategic value to America are COMPROMISES. Schumer apparently has rejected his obligation to find a way to strike them.

    But a Supreme Court with Gorsuch on it is no more (or less) “stacked” than one with Scalia on it. Losing elections has consequences.

  80. Republicans seem to think that because Justice Scalia was a Republican, he should be replaced by a Republican. That's not the way it's supposed to work. Merrick Garland should have been given an up or down vote, as a consequence of the 2012 election. Democrats have not had a Democratic appointed majority on the Supreme Court for 45 years. It was important to us that he be considered. Most Democrats believe a grave injustice was done and our vote was not respected.

  81. Nice company you keep:

    http://www.newyorker.com/magazine/2016/10/31/trolls-for-trump

    Nobody is compromising with Democrats. Never did, never will. Igor the Undertaker and Turtle McConnell run a tight ship. If you want thoughtful cooperation, you won't get it from voter suppression, modern Jim Crow tactics, gerrymandering, and pretending you have a majority of the US population.

    Those who enable Trump's egomaniacal con down the slippery slope of lies and dangerous, sometimes treacherous, ignorance, are complicit in all the dangerous things he is doing. We'll be lucky if he doesn't embroil the world in several different kinds of danger. And as to climate, well, that's big trouble, not good for children and other living things.

  82. Mary:

    Your response is curious. I'm old enough to remember Democratic-appointed Supreme Court majorities. At just about every opportunity, they sought to bypass the inability of liberals to secure enough of a legislative electoral mandate to impose their worldview on Americans by getting nine justices who serve for life during "good behavior" to impose what the left believes "is right".

    Problem is that there are multiple views of what "is right". On a lot of these issues, I'm as progressive as any other commenter in this forum; and on some I'm as conservative as any other. But to allow judges to make law is to introduce tyranny and to violate any promise our society makes to ALL our people that justice will be blind; and that to change us you need to undertake the hard work of building representative majorities in our legislatures.

    Gorsuch will be confirmed, largely because Republicans will not tolerate a return to the abuses we saw before the Rehnquist Court -- and they have the legislative and executive mandate to assure that. You should have made a better effort not to lose your Senate majority in 2014 -- if you hadn't, I wouldn't have approved of a liberal, experimentalist Court (and would have regarded it as very dangerous) but I would have backed its legitimacy.

    You're now left with making better arguments and electing more Democrats. If you can. In the meantime, government will intrude only in ways that the Constitution permits.

  83. I detest the filibuster. Republicans have moved so far to the right, compromise has become impossible. Democrats have spent years trying to work with them only to be obstructed at every turn, even when they have a substantial majority. Should the Democrats regain the House, Senate and presidency again, they should eliminate the filibuster even for the legislative agenda.

    Barack Obama and the Democrats were given a strong mandate in 2008. Without the extreme obstructionism of McConnell, so much could have been accomplished. Take your pick - a health care bill with a public option, an infrastructure program, greater investment in alternative energy and education, far reaching climate change legislation, immigration reform, a restoration of the VRA, tax reform that rewarded work over wealth and legislation to end the power of big money in our elections. Smart Republicans would have come along for the ride.

    As long as the filibuster is in place, bipartisanship is impossible because one party has lost it's way completely, putting party over country at every turn, thus turning its back on the Common Good.

    Of course, none of this is even possible unless Democrats and like-minded Independents get out and vote in every election. Let's do it.

  84. From July 2009 through December 2009, the Democrats had a majority in the House and a filibuster proof majority in the Senate. During that six months, they could have passed a carbon tax or cap and trade; comprehensive immigration reform; single payer Medicaid-for-all health insurance; tax increases; free daycare for all at federal expense; same sex marriage; and any other progressive dream they could imagine.

    Why didn't they? The reason they didn't had zero to do with Republicans. The reason they did not "fix" all of the problems of the universe is because not only would they have lost control of the House in 2010, they would also have lost the Senate. The Democrats would never have willingly been accountable for the huge increases in taxes and the uproar from the voters.

    The voters were so appalled at the Obamacare discussions by the end of 2009, that they voted to fill the Ted Kennedy seat with a Republican, ending the supermajority in the Senate. Now just think about it. Massachusetts had RomneyCare, which was already failing by December of 2009. The Democrats in Massachusetts elected a Republican to prevent it from becoming the law of the land. The Democrats, oblivious even to their own voters, three months later, crammed the defective law through on a procedural trick. They were shocked when the American people, rather than being grateful for the nightmare of ObamaCare, took the House away from the Democrats.

  85. It's not just the Supreme Court. Republicans have been obstructing the appointment of judges by Democrats for a long time and have stacked courts nationwide.

    Judge Gorsuch stands against voting rights, and for voter suppression.

    He has consistently ruled for corporate rights and against individual rights. This was powerfully demonstrated by his willingness to side with a company that chose to order its driver to stay and die.

    He has been for institutional rights and (in my opinion) phony "religious" rights over the recognition of women's rights to their own bodies and medical care. Oddly, this prejudice in favor of life is not extended past birth to the children, mothers, and families.

    He is for torture.

    No amount of on paper qualification, gollygoshing, or courtesy can mask the man's essential lack of humanity to the less fortunate.

    Returning to my opening comment, Republicans have been scheming by any means possible to keep their power, and though they've had minorities in all recent elections nationwide, have received a majority of representation. They have also taken over states and local authorities.

    In my view, voter suppression is a crime. Inasmuch as Judge Gorsuch appears to be ready to reinforce and even increase it, he is not prepared to administer equal justice to all in the highest court of the land. He appears to be prejudiced in favor of power and wealth.

    That is not what Democracy is about.

    Power corrupts, and absolute power corrupts absolutely.

  86. Susan,

    Your first problem is we are a Republic not a Democracy.

    Your second problem is many offices won by the Republicans are "at large" offices just like all the Governors and Senators. Republicans hold a majority of both. You want rules that allow you to win, fine next time your view is in charge change the rules to allow New York and California to control the United States, all of the other 48 states without giving the other 48 states any representation. 2 states controlling the country. The problem is our Constitution gets in the way of your "Popular Government" (fortunately).

    Your third problem is the Supreme Court won't change the rules for you because of its makeup. As a result of loosing the election under the rules in place, the Court likely won't help you for decades going forward either!

    You are correct about power corrupting, that's why Democrats ran a fixed primary selected HRC rather than Bernie Sanders and lost the election. Democrats not Russians rigged their primary!

  87. Is it being suggested that in order to preserve the filibuster rule that Democrats shouldn't use it? With respect to Bork's rejection, he was given a hearing, a vote was taken and he was rejected by a majority. Are Republicans claiming that the process was not fair? What were Democrats supposed to do? Vote him in in spite of the fact that they thought him unsuitable? Republicans keep on pushing in hard conservatives: Bork, Scalia, Alioto, Thomas, Gorsuch and want Democrats to just vote them in. If they had had any common sense or shame for having unconstitutionally denied Garland, they should have nominated a centrist to calm political passions, and acknowledge their destructive political strong-arm in denying Garland.

  88. The Supreme Court has been politicized ever since Earl Warren decided to substitute fidelity to the real Constitution with making it up as you go along according to the "living Constitution." If I am to be governed by a document whose meaning is in perennial flux, which depends on the whims of five unelected lifetime members of the judicial clerisy, then let's be honest and admit that we are picking politicians who masquerade as judges ... and, in that case, out with Garland and in with Gorsuch, Bork, Scalia, Thomas, et al., and let's find out about the cat in the bag we are supposed to buy for life in an Anthony Hamlet Kennedy, a Souter, or a Stevens. I already know what I am getting in a RBG, who shilled for Planned Parenthood and the ACLU before she went into the judiciary, which is why I would have voted against her, as in the case of Sonia and Elena. If anybody had any doubt where they would come down on cases, that person is incompetent. So why are we pretending that we should be agnostic about this?

  89. I don't know if there's a way to stabilize the system at this point. Between gross gerrymandering leading to iron-clad Republican seats, to the abhorrent dereliction of duty and obstructionism with respect to the Garland nomination to, in turn, a much needed strong response from the Democrats. Simple tit-for-tat. Acquiescing by the Democrats would only lead to a green light for more abuses by the Republicans. The problem is that, in this system, all loose. Nobody wins until both sides cooperate and give. They may not win as much, but they win.
    How do we get to a more cooperative stand by both parties? Abolish the nuclear option, gerrymandering, overturn Citizens United, impose term limits (perhaps including in the Supreme Court), increase terms in the House to four years, so they're not always in campaign mode, and abolish lobbying. When all of this happens, people will work together towards the good of the country, and pigs will fly.

  90. This editorial is comical. This very same paper's editors wrote triumphantly in 2013 that the nuclear option Reid deployed for lower court judges was "bringing democracy back to the Senate." Why a different tone now?

  91. Senility?

  92. Term limits for the Supremes- permanently. Starting with the NEXT election. Right, Mitch???

  93. Yes, Gorsuch is smart.
    Yes, Gorsuch is well qualified.

    But that is a minimum of what is required to be on the Supreme Court. Americans deserve justices who look beyond the narrowest interpretation of the law. They deserve justices who use logic, and also have a sense of humanity--sorely lacking in Gorsuch's treatment of the truck driver case.

    This Republican administration does not respond to nuanced negotiations, compromises, or collaboration.

    We certainly don't want to lower ourselves to the level of these bottom-feeding swamp dwellers---

    But it is time for Dems to play hardball.

  94. There remains a slim possibility that the Republicans' 52-vote majority in the Senate will not line up in lock step to end the filibuster.

    There may be three Republicans in all the world who still believe in the institution they serve.

  95. Three Republican senators would be far more likely to resist next time, if the next candidate is an ideologue rather than a highly respected jurist such as Gorsuch.

  96. The sad fact is that we are no longer governed by non-partisan laws. With the increasing polarization of the American body politic it was only a matter of time before the last bastion of justice (even though its had its moments in the past-the election of 2000 comes to mind) was overtaken by political brinkmanship. The Times makes a point of the need to keep the filibuster for a more appropriate time. But what will stop the Republicans from trotting out the nuclear option once again? I say, use it now and be done. Gorsuch is not the kind of Supreme Court judge I look forward to seeing on the bench in any case. Stealing a judgeship as McConnell did requires a significant response and it might as well be now. Mitch McConnell will pay for his unethical maneuverings over the last eight years in the text of history still to be written, perhaps the only "just desserts" we can hope for.

  97. "Mr. McConnell, whose determination to steamroll and humiliate political opponents exceeds any other consideration." See Trump and McConnell are really quite similar after all. They just won't admit it publicly. Both want to install justices who actually take instructions on decisions from them. Fortunately, that will never happen because of lifetime tenure. No justice ever has to listen to either one of them again.

  98. As I grew up (I'm 73) I was heartened by the ability of the two major parties to work together, compromising wherever necessary. But now we have a government in stagnation, with none willing to take the first step toward breaking the logjam of obstructionism.

    I appreciate the anger of the Democrats over the way the Republicans treated Merrick Garland. But right now we are a Nation in grave danger. We clearly have a dysfunctional and incompetent Presidency. Congress has devolved into schoolyard bickering. The Supreme Court is hamstrung.

    Someone must become the adult in the room. That Judge Gorsuch is likely more conservative than many party Democrats would like may be true, but I have not read anything about him that would be disqualifying. I reject the argument that the Democrats should treat Judge Gorsuch as the Republicans treated Judge Garland. If any of my four children behaved that way, they knew they would lose privileges.

    I truly worry about our democracy if the Senate Democrats fail to seize the opportunity to put aside their differences, become the statesmen and women that our country desperately needs, so our children and grandchildren can be proud of our country, safe in our homes, and share in the American dream that my father and uncle, and so many others fought for.

    For these and many other reasons, I implore the Senate Democrats to cast their votes in favor of the nomination of Judge Gorsuch.

  99. Where is your concern and admonishment for the Republicans who refuse to act in the interests of the country and its citizens? After all, they are the ones who refuse to compromise, block any and all things they don't agree with, are the ones who don't have a statesman/woman among them?
    Where is your concern there and why do you think it is only the Democrats who should be the responsible adults here? And how have you failed to see that they are the ones who have been trying all along to do exactly what you admonish that they do now?

  100. Garland didn't get a hearing because, frankly, Obama didn't pitch hard enough for him. That is my biggest beef with Obama: As president, that man was LAZY.
    Every important thing that did not somehow help him to come off looking like a real chill guy simply wasn't pursued or was done so lackadaisically.
    The healthcare bill has a toothless fine provision, Oh, well.
    Venezuela is collapsing, right here in our own hemisphere, manana.
    Guantanamo? Some other day, maybe when I'm feeling it.
    Supreme Court justice, ah, why bother. Not my problem. I'll leave it to HIl....

  101. "Even though the Supreme Court has been an active player in American politics — Bush v. Gore leaps quickly to mind — the process of choosing its members has been seen as mattering more than the partisan combat in Congress."

    Is the Editorial Board kidding? The elections of 2000 and 2004 were stolen, one with the help of the Supreme Court, simply so a Republican president could pack the court with exactly the sort of right-wing hacks that presently populate it. The Democrats played nicely with others, to the detriment of the entire country.

    I for one am happy to see the court-packing so blatantly out in the open. The pendulum will swing, hopefully in my lifetime, and we'll see some genuinely ethical justices put on the SCOTUS. As for Gorsuch, he'll prove to be just as much of a right-wing corporatist hack as Roberts, Alito, and Thomas.

  102. This argument reduces to: Democrats should not filibuster because Republicans might use the nuclear option. But what is the value of retaining the filibuster if Democrats cannot use it? If the Democrats cave preemptively, the Republicans will have won without even having had to be seen to be nakedly political. Democrats MUST filibuster Gorsuch's nomination. And let's cling to the small hope that a few Republican Senators will do the right thing and defend the filibuster.

  103. Why is it that the Democrats are the only adults in the room? They are held responsible for the politicization of the courts after denying Bork's confirmation while their nominees have been way more centrist than the Republicans; they are held responsible for using the nuclear option to finally get some Obama lower court appointees confirmed after hundreds of seats remained vacant while the Republicans refused to confirm any of his nominees and now, if in reaction to a clearly right-wing contender they decide to filibuster after having had the Garland seat stolen from them THEY are being held responsible if McConnell decides to use the nuclear option. They will have 'made' him do it! Just like the abusive husband blaming his wife for her making him angry.

  104. Dear NYT Editorial Board,

    "They have passed like rain on the mountain, like wind in the meadow. The days have gone down in the West behind the hills into shadow. How did it come to this?"

    The Democrats may rise again but not before they realize the why and how of their loss as well as its extent. While every election is important this one was critical because there will likely be 3 seats on the Supreme Court filled in the next 4 years plus a large number of Federal Judges appointed.

    Winning 100% of the vote in NY or CA won't win national elections, our system makes that impossible. Calling half the voters "Deplorable" or saying that "they cling to guns or religion or antipathy toward people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations." is not going to win national elections either.

    Democrats have shown their level of their contempt for both Liberals and Conservatives through comments and a rigged primary. To only their and the NYT's surprise they lost the election. Now they will loose the courts too!

    The courts have always been "political" this has been fine since the "New Deal" and FDR's unspoken agreement not to pack the Supreme Court if he received more favorable rulings. This was fine with the activist court after WW2. It was terrible when Al Gore lost and it's terrible now.

    Actions have consequences as do lost elections! Next time Democrats should run an honest primary without super delegates!

  105. this article highlights who and how we elect our officials. Voter suppression and gerrymandering are two issues that scream out for our attention, and if we don't do something about it America is going to be a third world country

  106. Obstruct. Resist. Refuse. Adam Schiff was right: The nuclear option was when the GOP refused to even have a hearing and vote, the rest is all fallout. The GOP owns this and will rue the day they neutered themselves for a temporary and temporal advantage

  107. No way, no how - Gorsuch. We, as a country, are legitimately outraged by the treatment of Obama's nominee, Garland Merrick. Is the filibuster worth it? Are you kidding??? Democrats cannot cave in to this malicious agenda by McConnell, dark money and the Republicans who think they can subvert the will of the nation and the elected President to nominate a justice. It only get worse if we accept this ultra conservative Justice chosen by DARK MONEY. Our Democracy is at stake. Say no, stay strong, keep our democracy alive.

  108. We have a mentally unstable president with no legal background, he has a bunch of family members and border-line criminals for advisors, and I'd bet my life he'd never heard of Neil Gorsuch before he was elected. Is this any way to select a person for a lifetime position in our highest court?

    I think not.

  109. Outside of legal circles, had anyone heard of Garland before he was nominated? I think not.

  110. The notion that there is a possibly worse nominee down the road for whom the Democrats should save the filibuster is faulty for two reasons. First, McConnell can always exercise the nuclear option then. Second, Gorsuch is as bad as tehy come.

    Nobody is forcing McConnell's hand; the decision is entirely his own. He can do the right thing for the good of the country and the senate and not exercise the nuclear option and then we can get a new candidate that is more palatable to both parties.

  111. So we give the Republicans what they want now in hopes they won't just take it next time. Because there's a long record of their being reasonable when we're reasonable. When did Lucy Van Pelt start writing your editorials?

  112. If only, a year ago, the eight members of the Supreme Court had spoken with one voice to denounce McConnell's shameful assault on the court. They, who had nothing to lose, might have been able to sway public opinion and thereby influence the course of the debate, forcing at least a vote on Garland.

    Is it too much to expect our elected and appointed representatives to do what is right? Apparently so. Shame on them all.

  113. Trump is not the President. He has the presidency by virtue of a coup. Republicans hold both houses because of gerrymandering and voter suppression. It does not matter if Gorsuch gets in on a rule change. Everything that is happening is completely illegitimate. If there is ever a fair election in this country again it will be a miracle. But if there ever is, Gorsuch will be impeached because he should never have been here in the first place.

  114. The Electoral College apportion distortion has never provided a fair election.

  115. The Times is right to target McConnell as the chief architect behind the current standoff over Supreme Court nominees. But McConnell, through silent cunning, has managed to avoid serious, sustained scrutiny by the media. (The man in the shadows.) However, this tit-for-tat pattern over the nomination process is corrosive. And both sides need to figure out a way to change it - with the prodding of the Times and other members of the serious media.

  116. McConnell is a disgrace to the entire state of Kentucky. Ever state seems out to poison all the others in this nation of children. US Senate apportionment is denial of equal protection of law.

  117. It is time to put term limits on the Supreme Court. A term 10 years should be sufficient to allow an unpoliticized group of wise men and women. Life expectancy is much greater now than when the Court was formed, and limits will ensure that no one is there for 40 years.

  118. ...and it may, in the end, fall to the court itself to find a way to rise above the steadily encroaching tide of factionalism.

    The brothers Koch, Robert Mercer, Rupert Murdoch, and the Heritage Foundation permitting.

  119. Blocking nomination of Neil Gorsuch by the Senate Democrats might be a fitting political response to the Republican obstructionism during the Obama presidency years but not a sign of a mature and responsible opposition. Given the inadequacies and incompetence of the Trump administration and the disarray the Republican party does find itself in, neither would there be lack of opportunity for the Democrats to checkmate the executive lapses nor to force the rollback of stupid legislative measures. It's time to act prudently.

  120. McConnell puts party before country. What he and Grassley and friends did to Garland was wrong and damaging, but two wrongs don't make a right. Let it go. Keep your honor.

  121. The outrageously dysfunctional Trump administration combined with a cannibalistic GOP could result in a Democratic sweep in both houses of congress between 2018 and 2020. In our topsy-turvy politics, anything is possible.

    If Republicans have eliminated the filibuster to nominate one, two, or three supreme court justices, can they visualize the vengeful payback coming their way when they are the minority party with no filibuster? That, too, is a very real possibility.

    Republicans would not go to all the effort of boycotting Garland for so long if they were not certain, behind the scenes, that Gorsuch was their man, and would overturn Roe v. Wade, Obergefell v. Hodges, and rule in favor of the corporate plutocracy with predictable certainty. Their agenda is razor sharp.

    Democrats very likely will lose this battle. If so, they should lose with some honor, because if they do not the grass-roots progressive voters will have no choice but to bolt for a third party in large numbers. It is in Democratic party's long-term interets to stand firm against Gorsuch.

  122. "If Republicans have eliminated the filibuster to nominate one, two, or three supreme court justices, can they visualize the vengeful payback coming their way when they are the minority party with no filibuster? That, too, is a very real possibility."

    The Democratic base will insist on the most severe payback regardless, so why not confirm a justice or three first?

  123. Well done.

    Not one mention of Reid.

    Not one mention of Democrats blocking Bush nominees so that he had to horse trade with them including giving up Miguel Estrada for the Court of Appeals. Democrats didn't want a brilliant Hispanic to have a chance to get on the Supreme Court.

    "But surely having some slight chance of being able to deploy it to stop a renegade justice is better than having no chance at all."

    Do have to feel sorry for the Editors as they cry in their beer even though they were the ones who egged on the stonewalling.

    Trump made cabinet appointments that everyone knew were going to be confirmed and the Democrats delayed and delayed including not showing up to deprive a quorum.

    Why should Republicans deal with them if they don't have to.
    "

  124. Isn't justice supposed to be objective and apolitical ? Sadly, the problem is more entrenched and insidious.
    How else do you explain that nearly 80% of the ninth circuit cases are overturned by the SC ?
    It is no surprise that the American people are disillusioned by the judicial system as much as they are sickened by the political system. The latest filibuster nonsense of Judge Gorsuch only adds fuel to the fire.

  125. "How did this happen" the Board rightly asks? It happened when the GOP began to believe in its own ideology above the very apparent disquiet and unease a majority of American voters have with that ideology. Even our Page Six President wasn't elected as a Republican, but as a purported 'outsider', willing to 'blow up' the status quo.

    Notwithstanding recent successes at the ballot box, the modern GOP not only cannot fathom why they are not more popular with the public, but are becoming all too preoccupied with extra-legal methods to ensure they continue 'winning' elections in spite of their marginal electoral performances. Marginal, that is, in those places that still have reasonably fair and un-gerrymandered districts, as well as voting rules that don't function as vote-suppressors for one party over the other. Congress has had a majority party for 6 years that has only garnered a minority of votes nationally, an unusual phenomenon until the modern era.

    They so insist on 'having their way' regardless of the methods employed, GOP donors have managed to find a Sen. Majority leader willing to break constitutional norms to prevent a sitting president from nominating a SCOTUS justice, using spurious excuses that center around self-serving constitutional semantics completely unheard of in any known legal circles of any repute.

    What it all adds up to is disrespect. Disrespect for voters, disrespect for institutions, and disrespect for the constitution this nation was founded on.

  126. "That leaves it to Democrats to consider whether the filibuster is worth saving." What? No it doesn't. The Democrats are not the ones threatening to blow up the process. Unlike the Republicans, they refused to play games with the Senatorial process and gave Judge Gorsuch a fair hearing. He proved polite, friendly, qualified and extremely, even dangerously conservative. And unlike Roberts, Ginsberg, Thomas, Kennedy, Sotomayor, Kagan, Alito and Breyer, he did not garner 61 votes in the Senate. So the President who lost the popular vote, squeaked into office and hasn't the slightest support for tilting the Court to the far, far right should submit another, more centrist judge. I recommend Merrick Garland. Your ire should be saved for Mitch McConnell.

  127. Neither Justice Thomas nor Justice Alito received sixty votes. You are mistaken.

  128. With the current crop of Republicans, rules do not apply, so why not apply a filibuster now when you have the chance to use it - and for good reason. It is not as if waiting for the next time it will be of any use - the same Republicans can override at will, and a filibuster may be harder to justify than it is now.

    But maybe "next time" is after 2018 and the justice chair thieves lose enough seats for opposition to have a say. They will benefit by simple majority then to try and overturn the swampy mess we are in.

    If Democrats can't gain seats in 2018 given our current state of affairs, then all is lost anyhow!

  129. By their inaction on Judge Merrick Garland, McConnell and the GOP not only disrespected Judge Garland, they also disrespected the POTUS and the constitution.

    No matter what the Democrats do with respect to Judge Gorush, McConnell and GOP should shut up and stop whining.

    Harry Reid was no prize, but thanks to Mitch McConnell and the GOP, if the president's party doesn't control the Senate, essentially, the sitting president can only nominate a Supreme Court nominee during the first 3 years of his term. The GOP and McConnell didn't break any rule, but created a new dastardly one that would have an adverse impact on the country for years to come.

    McConnell belongs in the Senate Hall of Shame. His tenure cannot end soon enough to suit me and I am sure I am not alone.

  130. I fail to understand why "That leaves it to Democrats to consider whether the filibuster is worth saving."

    The nuclear option needs nearly a unanimous Republican front. Are there not at least 2 Republicans who might also consider the whether the filibuster is worth saving?

  131. You need three. If two, Pence would vote.

  132. However this seditious game is played out by the utterly amoral, repugnant, and racist McConnell, let us not fall prey to the endless efforts to suggest that there is any precedent or equivalency between the parties: there is none - McConnell and his bunch of Neo-Confederates engaged in an unprecedented level of filibusters, and, as we all know, met the very night of President Obama's first inauguration to plan their strategy to "make him a one-term President," and obstruct and block every single initiative he proffered, and judge he nominated. McConnell is a liar - flat out - if he opts to eliminate the filibuster, after literally engaging in treasonous refusal to even accord a hearing to a highly qualified SCOTUS nominee, that is solely on his head, not the Democrats'. Let us also not lose sight of the fact that Robert Bork was the GOP-er who was all in for Richard Nixon's demand that he fire Archibald Cox, whereas Elliott Richardson and William Ruckelshaus both resigned, rather than abet Nixon's criminal conduct. Bork was unsuited by any measure for a SCOTUS seat, and his conduct proved that. This nation is being held hostage to a bunch of power-addicted right wing thugs who are intent upon installing a theocracy, a kleptocracy, and restoring the 1800's. Never in my life have I feared more for this nation - when an entire amoral party and its appalling, illegitimate POTUS pose an existential threat to us all. 4/4, 10:41 PM

  133. President Obama, a legitimately elected president of the United States nominated Merrick Garland to the United States Supreme Court after the death of Justice Anthony Scalia. President Obama fulfilled a constitutional duty to recommend to the Senate a candidate for their review. The Senate refused to review his credentials. The republicans failed to carry out their constitutional duty. A concocted litany of excuses was presented by the republican senate to deny this honorable man a hearing and potentially a seat on the Supreme Court. Among these was the falsehood that President Obama should not nominate a Justice in an election year. This fabricated distortion does not exist in the American constitution.
    The nomination of Neil Gorsuch by Donald Trump to become a member of the United States Supreme Court is now an illegitimate nomination and Gorsuch will take his place on the court with an asterisk after his name. In criminal law if you accept property that you know is stolen you are a party to the crime and can be charged with theft. Stories speak of the credentials of Gorsuch as a strict interpreter of the American constitution. If he has any integrity and respect for the Constitution of the United States, he will refuse to be sworn in as a Supreme Court justice and go back to Denver. If he takes the oath he becomes a willful lackey in the latest episode of the republicans hijacking the American constitution for blatant partisan political purposes.

  134. All decorum and acting like adults aside, face it -- this is WAR, and McConnell has launched the first bomb. Dems, GO ALL OUT., this is now a Blood Sport.

  135. This is one motherloving stupid way to negotiate and manage a social contract.

  136. Some of us find it surprising that no one has attempted to take the Garland case to the supreme court and surprising as well that no one now is taking the Gorsuch nomination to the supreme court. We the people, the Obama government, and Judge Garland deserved to have Garland given a hearing and voted on as the legitimate nominee. We the people deserve that Judge Gorsuch not be given the hearing he has received and not be voted on at all because his nomination is illegitimate--not to mention that the president and party nominating him may also be proven to be illegitimate. It is thuggish of the Republicans to take an attitude of "You can't stop me." This is the brutalization of democracy by those whose only goal is power. The world has seen such people before.

  137. freyda ny you've put into words exactly what I'm feeling. I'm a republican but I truly believe I know right from wrong. Gov John Kasich recently said, " The nation risks losing its "soul" but I think my party has already done that led by the Freedom Caucus.

  138. Response to Freyda, I had not heard that suggestion before and I love it.
    Bring it to the Supreme Court. Why should mitch be able to make up lies about everything go unchallenged?

  139. If there is any naivete in Washington these days, it is with the notion that bipartisanship is still alive. The Gorsuch nomination should be opposed. Let McConnell go nuclear if he wants. When the roles are reversed in a couple years, he'll be the one crying about it.

  140. I hesitate to say this but the Editorial Board has its head in the "Ideal World of Congress" clouds. As long as Mitch McConnell and his supporters infest the Senate and have a majority the Democrats will not get their way. He is able to hold his Caucus whereas some Red State Democrats will shoot their own in the back, such as Manchin, Heitcamp etc. Or maybe they were given the day of because they got 41.

    Its better for the Democrats to show some guts and hold the line. The GOP will do more harm for the middle and working classes with other egregious legislation and its better for the Democrats to get some practice in being a real opposition party than the Republican football (soccer) to be pushed around whenever possible. The President needs to know he cannot come running to them if the hard right stops him.

  141. Democrats are now in the minority and it's high time for them to follow the "standard" set by Republicans. The one-upmanship game played by Republicans in the past 7 year is the new standard Republicans have set and Democrats should follow the rules set by Republicans.
    What's good for the goose is good for the gander. Democrats should block any and all Republican initiatives, even if they lose in the end and, even if it is to the detriment of our nation. Republicans set the standard by not even considers Garland for the Supreme Court.

    Dems have to fight fire with fire.

  142. I suggest a brokered solution. Garland is confirmed to replace a retiring Ginsberg, the fillibuster in Supreme Court confirmation is preserved, and Gorsuch is confirmed. This would keep the seat of the 84 year old Ginsberg out of Trump's hands, and leave the Court with the same balance it had before Scalia's death.

  143. I don't foresee Ginsburg allowing a person like Trump to replace her.

  144. The realistic prospect of dying and being replaced by a Trump nominee, with no filibuster, could persuade her. If she won't jump, top Democrats will likely have to push her.

  145. "That leaves it to Democrats to consider whether the filibuster is worth saving." - I'm not sure about that. When someone blackmails you and you decide not to pay, are you the one who forced the decision?

    While as a reasonable American, presented with a reasonable choice for SCJ, I have no trouble appointing Gorsuch. However, as a patriot who has had their vote trampled on by McConnell and his fellow GOP committee members, alongside the fact that Trump's presidency has been chaotic, disrespectful to the Constitution and he's still under investigation for what boils down to treason, I don't see why this has to be rushed. If it could wait for 8 months, why not another 8?

    McConnell is a traitor, pure and simple. He has failed to uphold his oath of office and denigrated the Senate. It will be his legacy.

  146. Barbra,

    You lost the election! The boat has sailed! Rigging your primary against Bernie Sanders has brought you to this point, not "The Russians"!

  147. Wish that your editorial page hadn't advocated restriction of filibusters in 2013. Once we say that the Senate minority may be denied any voice/leverage in some matters, it's hard to explain why doing the same in other matters is wrong.

  148. The US Senate's apportionment makes a complete travesty of the whole concept of majority and minority.

  149. "And the danger some Democrats appear to fear of seeming naïve by clinging to a goal of bipartisan support for the court seems less acute than the certainty of their appearing ineffectual in a futile effort to block the Gorsuch appointment."

    So, the danger seems less acute than certainty--what are you trying to say?
    Ah, the mess may need to be resolved the the "stacked court." Good luck with
    that. I'm sorry, but I don't find any clarity in this analysis.

    The only hope is that a few standing on principle for the good of the country may find support and demonstration by an aroused public. Fighting in the trenches for scraps will not win anything.

  150. Treason to arrogate more power to Republicans is no vice.

  151. Bill Clinton dealt with Newt's extremist partisanship by so-called "triangulation" -- caving to conservative demands, like "ending welfare as we know it" and getting impeached as an exercise in hatred. GW Bush created angry dissent by pushing incompetence to the max with lies about his vanity wars, torture, fossil fuel takeover of the country, and VP Cheney's craziness. But the last 8 years, led alarmingly by Mr. McConnell, has been an exercise in the destruction of our country. They opened our nation's original wound of racial hatred for power. For Koch and Mercer dollars, they have lost even the pretense of working for the average guy. Trump is the direct result. McConnell should hope that what goes around most certainly does not come around.

  152. Gingrich is bilious bag of bad faith pumped up by folks like Sheldon Adelson.

  153. I support the Dems filibuster and forcing mcconnell's hand to use the nuclear option.

    mcconnell knows he brought this on based on his obstruction of the Garland nomination. The stain and stench of this nuclear option will remain with the GOP for years!

    Obstruction has consequences!
    This is a stolen SCOTUS seat.

    Do it mitch! Pull the trigger...and the GOP will pay the price well into the future.

  154. And what price will the GOP pay?

  155. Actually Roe v Wade leaps quickly to mind. This terrible decision was the beginning of the modern politicization of the Supreme Court. It was a political decision made by judicial fiat, and with little Constitutional grounding. SCOTUS brought this problem upon itself.

  156. Little constitutional grounding? The decision was nearly unanimous.
    The decision was made 7-2 and has withstood all challenges in more than 40 years with the possible exception of limiting it to the first trimester.
    And how about when the SCOTUS made Bush Jr. the President of the US? You want to talk about judicial overreach? Explain that one.

  157. Roe was a 7-2 decision that included Republican appointees like Chief Justice Burger in the majority. Roe is still supported by most American people. And the article's about partisanship, so maybe your comment isn't even on topic?

  158. @glennst01 -
    The US Constitution is totally silent on the issue of abortion. To justify the Roe v Wade decision, the majority had to rely upon "penumbras" and "emanations" and other figments of their imagination. Even many liberal legal scholars who favor abortion acknowledge that the Roe v Wade decision was poorly reasoned.

    The danger in basing Supreme Court decisions on the imagination of judges rather than the written plain meaning of the Constitution is that it is subject to change with a change in personnel on the SCOTUS. Hence the political hysteria that ensues every time a new seat opens up.

    The US would have been better off if SCOTUS had sent the abortion issue back the states in 1973 to be resolved through the political process.

  159. Most nominees, as you notle, have received bipartisan support. The Senate should agree to give up the filibuster if there's an agreement that a super-majority of 67 votes is required to approve a nomination. This would ensure that future nominees would be much more moderate than ideological judges who are more clever in bending the law to their views and, instead, would be more willing to have their views bend to the law. That means, we'd have a more centrist court willing to be open to compromise, as was the case in the 9-0 verdict in manor cases like Brown v. Board of Topeka Education. Such decisions are much better for our democracy than the current dysfunctional 5-4 partisan verdicts.

  160. The Senate rules are complicated. And those who know them best can accomplish the unexpected.. No one has ever considered knowledge of the rules to be dirty pool. Lyndon Johnson's expertise helped get the Civil Rights bill passed over the objection of the Republicans. McConnell did basically the same. He knew the rules better than the Democrats and so he blocked the Obama appointment . Johnson was much-praised for being clever. McConnell is much criticized. Both did their party's work with ingenuity. Both believed they were serving the interests of justice. There will be meaningless distinctions made. And nobody will admit that similar partisan tactics were used because Democrats irrationally adhere to the notion that McConnell's permissible tactic, unlike Johnson's, was a travesty of justice.

  161. "Lyndon Johnson's expertise helped get the Civil Rights bill passed over the objection of the Republicans. "

    A majority of Republican senators supported the Civil Rights Bill. Southern Democratic senators did not.

  162. I find this sad more than anything.

    The article dances around the issue of governmental legitimacy but doesn't elaborate. What should be the subject of a future op-ed is exactly how far in the sewer any of the branches of government must fall before they lose all credibility with those who are purportedly governed by them. Democracy is a two way street, and exists only so long as the governed consent to being governed.

    That is what concerns me most about the direction this is heading. Why obey the laws if they are installed by a corrupt cabal? Why obey Court orders if they are made for a partisan purpose by political appointees?

  163. Good riddance to the filibuster! It was always an anti-democratic weapon that a Senate minority could use to block the majority. The Republicans weaponized it during Obama's time in office to block nominees even for the lower Federal courts. Like any weapon, it can point both ways. Best to let the Republicans get rid of it. There's the nice irony of those who depended on it being the ones to eliminate it, and eventually there will be another Democratic president who will be grateful for the judicial filibuster's demise. Bring it on Mitch!

  164. Why are terms like respect and human dignity meaningless to the adult-children that call themselves republicans?

  165. Barring a catastrophe in our society the Republicans are headed for increasing minority status and will suffer from this tantrum.

  166. The majority is NOT always right. The filibuster is one way of preventing the "tyranny of the majority" from running roughshod over all opposition. If a question is important enough it can always be worked out in time and negotiation. The misuse of the filibuster as a political tool to block everything proposed by the other party is an illegitimate application.
    Perhaps the problem comes down to entrenched power at the upper levels of the Senate's(and the House's)organization. The President of the Senate(the Vice President) already is subject to term limits, perhaps the positions of Majority leader, Minority leader in both Houses and the Speaker should be replaced after two Presidential terms.

  167. "But surely having some slight chance of being able to deploy it to stop a renegade justice is better than having no chance at all."

    Why do you presume that Neil Gorsuch is not a renegade? The NYT published a very informative op-ed by Bazelon and Posner on Judge Gorsuch, Schechter, Chevron, and the administrative state. Non-delegation? You want to go with Congressmen of insufficient vocabulary and staffers of overweening misunderstanding? Add that you want 10,000 rules re-interpreted? Senator Franken used the word absurd to characterize the frozen trucker ruling. I think 'overturn Chevron' gets to absurd pretty quick too. All told, I'll call Judge Gorsuch a legal renegade. The only reason he might not seem to be is that they have been multiplying like rabbits for the last five decades.

  168. Hah, I'm amused that the editorial board is naive enough to even attempt to place the blame on McConnell. He's only using a method spearheaded by the democrats in 2013 to override a republican filibuster.

  169. The Constitutional method is best. Every Senator gets a vote, and majority rules,whether the Senators are Republicans or Democrats or others.

  170. If a candidate for SCOTUS cannot garner 60 votes we need to ask why. Obama was in his final year and that was the excuse to steal a seat but Trump is being investigated for what would be tantamount to treason and may be forced for office but the GOP is willing to grant him a lifetime appointment before the cloud of the president's is a legitimate president or not. If Gorsuch is rammed through and Trump is forced from office by impeachment or otherwise that will be a second stolen seat and the GOP knows it and does not care.

  171. Mitch McConnell's refusal to even hold hearings on Obama's rightful candidate is the single worst act of party over constitution in the long history of Senate leaders. If he now changes the rules to allow a quick, but bare majority, approval of his party's choice, that act will seen as more of the same– an act of brazen and pure partisanship. McConnell is not a statesman; he is a party hack.

  172. He is not a flack, he is great leader of the band, the pied piper. Let the rats follow him.

  173. Of course, you know that the Democratic Party would have done the same thing if the roles were reversed, right? I mean, now that we're being honest and everything....

  174. No, he was just applying "The Biden Rule" that Supreme's should not be confirmed in the last year of an administration. Nothing new here and actually started by the Dems. Facts matter even in a fact free zone like the Times.

  175. McConnell's abhorrent behavior in trying to obstruct all of President Obama's efforts at governing must not be rewarded. Therefore, the Democrats must filibuster Gorsuch's nomination. Nothing will get better until the U.S. sinks to the bottom, and a large majority of the public recognizes the real perils that all Americans are facing.

  176. McConnell is the worst blockhead ever to sit in the Senate....a'

    Foul small minded TOAD.

  177. McConnell had to, or we'd be stuck with Obama's mess for many more years. The real perils that all Americans are facing will dissolve as the Obama appointments fade away.

  178. Elections have consequences, or at least I heard that from someone. Unfortunately folks in congress are too polite and think they are friends with opponents. Some have declared war, smart people just win it.

  179. I voted Democrat for over 20 years, beginning with Bill Clinton in 1992, right through to and including Barack Obama's reelection in 2012. I was disgusted and disappointed with the Bush vs. Gore decision (and also the lackluster campaign run by Al Gore). And I have to say it unfortunately started with what the Democrats did to Robert Bork. Will never forget my father's outrage at the Borking of America, and he was a lawyer & card-carrying member of the Liberal Club at his university in the 1950's (hosted Adlai Stevenson more than once).

  180. What a farce. McConnell is a sophisticated hypocrite, lying to us with a straight face, a 'model' obstructionist when in the opposition; a radical ideologue otherwise, to stack the Court with Alt Right comrades in arms. Decency is, deplorably, awol.

  181. Shame on the NYT Editorial Board.
    You acknowledge that the Republicans "could possibly strip the filibuster away the next time, too." So you counsel that the Democrats err on the side of timidity about reporting and responding to aggravated assault and rape?
    What is wrong with you? The traditions of the Senate are not up for discussion...where have you been for the entire term of the two Obama Administrations?
    McConnell and the Senate Republicans have no intention of preserving the function of the Senate as prescribed by the Constitution. Garland was just the frosting the cake...they've done it for eight year and not fighting back is not a strategy for making them stop!
    Making them ridiculous is the only possible response. And bringing out the vote in 2018 and 2020 and prosecuting every possible violation, however minor, for every possible criminal and ethics violation until the GOP can be swept up in a dust pan and put in the trash.
    Fuggitaboutit! Filibuster...make them own the crime.

  182. Alas, making Hitler seem ridiculous didn't work. As a country, we're right on the slippery edge of the tar pits from which no creature has emerged alive.

  183. Protecting the filibuster should not be a goal. The filibuster, as often as not, has been used to thwart progress. It was used routinely to block civil right legislation. It prevented us from reforming health care until there was a temporary 60 vote Democratic majority. The Senate, with 2 senators per state regardless of size, is undemocratic enough. Adding an arbitrary 60 vote threshold makes it even worse. It is time to get rid of the filibuster, for judicial nominations and everything else, and embrace the chaos that may ensue.

  184. The editorial board tries very hard to pin this on McConnell and the Republican caucus, but I will counter with one key fact omitted here. Not one single nominee has ever been the subject of a successful partisan filibuster. Justice Alito was confirmed by fewer than 60 votes, and despite the fact that then Obama and others attempted to filibuster his nomination, they failed to achieve 60 votes, and Alito received an up or down vote. The reality is that if a nominee of the caliber of Neil Gorsuch is required to attain 60 votes for confirmation, then no virtually seats will ever be filled unless there exists a supermajority of the same party as the president, which has seldom occurred in the past 50 or so years. And do not forget that Biden, et al. essentially said "no confirmation" in the final Bush years.

    The underlying problem is that justices do, in fact, vote in a predictably partisan way, at least in politically charged cases. This is not especially a new thing. But since the court has taken it upon itself to essentially assume the mantle of a super-legislature, the stakes have become immense. The culmination of this was the Obergefell decision. Regardless of whether you approved the outcome or not, Obergefell essentially was Kennedy and the D. justices imposing their own policy preferences on the country. When five people can create such an outcome out of whole cloth, then the stakes in these confirmation hearings are clear. And McConnell is nothing but rational.

  185. There is nothing in a Senator's oath of office saying they have to vote yes on a candidate and Senators have voted down Judicial candidates since the beginning of the nation, long before Bork. The Senate oath does say the Senators promise to uphold the constitution - this means that deciding that they will refuse to do their job and interview or vote on all candidates is refusing to do the job they swore to do. The NY Times is, as always, far too ready to play the both sides do it game. There is a fundamental difference between voting down candidates and refusing to perform the office of Senator as described in the constitution. When a party refuses to do it's job at all it is breaking the pact to govern by law and constitution that is the only thing that make our government possible.

  186. People who have deliberately politicized the Court have no standing to complain when the Court gets embroiled in partisan politics.

    It is pure chutzpah for the Times to invoke the rule of law when no one has tried harder to undermine it or more aggressively advocated for the Court to substitute the Times's policy preferences for the Constitution.

  187. No NY Times. This is on Harry Reid. As soon as he ended the filibuster on judicial nominees it was only a matter of time before it was extended to SCOTUS. Timmy Kane said as much back in October when it looked like Bill Clinton's enabler would be elected president.

  188. Let's get one thing perfectly clear.. Trump didn't nominate Judge Gorsuch- The Heritage Foundation and Cato Institute did it for him. That means our Supreme Court is now for sale to the highest bidder. This is like the Charlie Brown and commercialization of Christmas episode- complete with the aluminum tree. Is nothing sacred in this country anymore? Sooner or later each judge will have a collection of corporate sponsor patches sewn in their robes. This makes me sick.

  189. Republicans keep going back to Robert Bork as the beginning of the process of politicizing the Court. That is nonsense. First, in recent times, it is clear the process of using primarily political criteria for selecting judges began in the Reagan years. Second, Robert Bork was rejected by a majority of the Senate because in his hearings his failings as a caring human being became obvious for all to see. I had read some of Bork's opinions, so had some strong suspicions that the hearings confirmed. The real problem is that the Republican Party is committed to representing the rich and powerful and are willing to bend rules, laws, traditions, or even the constitution to achieve that goals. Assume that the filibuster will disappear for all Senate action in this term because it is the only counter control Democrats have left.

  190. Indeed. Bork's problem was that he answered candidly, something no republican nominee has done since. Gorsuch was barely willing to give his name, rank and serial number.

  191. Maybe. America, France and Russia threw off this kind of thing. Though those revolutions were bloody, they were worth it. Unfortunately, it appears that Russia has fallen back into the tar pits. America and France haven't, though it appears that America has begun to slide back. The question is whether it's too late.

  192. I agree with Rawebb. For quite a few years now, the Republicans have acted as if they are the only party that can legitimately govern. They are not trying to have a two party system. Many words are said about freedom and less government -- but it really all breaks down to government that protects the rich and gives them the freedom to grab all they want -- everyone else be damned! All we can do is resist. Our gentlemanly (in the broadest sense of the word) compliance on Roberts and Alito has only gotten us Citizens United.

  193. There is no equivalent here with respect to both parties. The Republicans or whatever you want to call them now are rats on a sinking ship. White old men like Mitch are destroying my country for the sake of smirks and power grabs. It's time for a new order. These people need to go away, Clintons included. We need a fresh start

  194. GOP is interested in one thing and one thing only repeal of Roe v Wade. States would then be able to ban abortion in their state. We will go back to back room abortions and the millennial will experience what their mothers had to go through. And all of those jobs will be available for men because women will have to have children, a la repeal of federal guidelines sexual abuse can only be arbitrated secretly. What a sorry society when we punish women, their mothers, and children!

  195. Imagine President Hillary Clinton's nominee was being filibustered by McConnell. The Gray Lady would be at the top of the list calling for the nuclear option. They are no better than the DPRK news agency. I think they may be even more biased.

  196. Good call. Don't filibuster this nomination.

    The Democrats should try to get a concession on something else, something big in exchange for allowing the nomination to proceed. Otherwise, they should devise their own "nuclear option" in retaliation for the Republican theft of the prior nominee. Shutting down the government for a few days, if they can't otherwise make a deal, doesn't seem out of the question.

    Even a hyper-partisan snake like McConnell surely must have some respect for the long traditions of the U.S. Senate. Surely. If the Democrats agree to allow the nomination to go forward, then he would not have to change the rules of the Senate and procedures would be preserved. If, however, he won't concede anything at any time, the Democrats might find themselves in a position from which they cannot retreat. Hey, it happens.

    For the eight years of Obama, the Republicans obstructed government by blocking appointments at many levels AND they garnered little blame and almost no attention from the major national media. Whatever the Democrats do now, they should make sure that the country understands what they are doing and they come out looking like winners. Gorsuch is going on the Court no matter, so they should leverage this situation to their advantage. If they can't, all bets should be off.

  197. @ Hank Berry III

    "Even a hyper-partisan snake like McConnell surely must have some respect for the long traditions of the U.S. Senate."

    Alas, Mr. Berry, like all bullies and hate-filled obstructionists, McConnel is incapable of respect, though he can fawn on power if it feeds his rage, his racist rage at Obama for example. I think of Iago.

  198. The seat Judge Gorsuch will probably occupy on the Supreme Court was stolen from Judge Garland or whomever else President Obama might have selected if Judge Garland had been rejected by the Senate. SCOTUS judges have the obligation to act by their interpretation of the constitution and, one would expect, have deep respect for it and in many cases are bound by precedent. Unless I am completely mistaken (as I may very well be) the Senate did not have the option of ignoring President Obama’s choice of Judge Garland or of any other president’s choice for SCOTUS . In that case, I believe judges chosen for SCOTUS by the present administration, out of respect for the constitution and for precedent, should be honor bound to refuse the appointment until Judge Garland has had his day with the Senate. Failure to do so basically endorses this final and most conspicuous act of the deliberate obstruction of President Obama’s presidency Senator Mitch McConnell declared on inauguration day 2009.

  199. You are mistaken! Not doing anything is "advice"! The Constitution allowed the Senate to make its own rules.

  200. You are mistaken. The Senate absolutely had that option, and exercised it. Separation of powers principles prevent anyone but the voters via the political process from telling the Senate how to carry out its constitutional duty of advice and consent, and, well, we know what the voters had to say on that!

  201. You are mistaken: US Constitution, Article 1, section 5, line 2 "Each House may determine the Rules of its Proceedings". That means that the Senate decides what the Senate is required to do. The executive or Judicial branch can't force the Senate to call a vote.

  202. I wish we could change the nomination process. If presidents didn't nominate Supreme Court justices, and the court didn't play such an outsize role, perhaps many of the Republicans who voted for Trump wouldn't have. And as to the content of the editorial, I agree almost entirely. There's something fantastical about the way progressives discuss this. Gorsuch is as good as it gets with President Trump.

    I also agree with another commentor who said that the politicization of the court is only an instance of the politicization of everything in today's America. The country is as divided as it's ever been, save the Founding generation and the Civil War era.

  203. And the Vietnam era.

  204. "If presidents didn't nominate Supreme Court justices, and the court didn't play such an outsize role, perhaps many of the Republicans who voted for Trump wouldn't have."
    This hypothetical Republican voter could have been me. I did not vote for Trump but almost did, for fear that president Hillary would nominate yet another anti-gun justice, thereby dooming Heller and McDonald.

  205. The Times acknowledges that if Senate Democrats refrain from filibustering the Gorsuch nomination to preserve the tactic for a future court pick, their chances of prevailing in that future battle are just as remote as they are today. So why delay? The time to register a political protest over the treatment of Judge Garland is now--during the confirmation of the judge who would not have been picked to replace Justice Scalia if Senate Republicans had fulfilled their constitutional duty last year.

  206. Two points:

    1. If Dems fear using the filibuster one last time against Gorsuch or any other mominee, then for all practical purposes the filibuster is already dead.

    2. Let history show that the Repubs own this illegitimate nomination.

  207. I won't be around to see the judgment of history. I worry for myself and my loved ones in the here-and-now. Worrying about letting "history show" gave us Sanders Zealots and Never-Clintons and we got Trump.

  208. So however it happens, Friday will bring us one step closer to a Supreme Court that is a naked political arm of the ruling party. With life-time appointments we can now expect the last election to change the nature and direction of America for 40 or more years, even if the normal 8 year party swapping continues at the Presidential level. Within the present Presidential term we may find ourselves with a puppet high court that even Nicolás Maduro would be proud of.

    We already have two systems of "justice", one for the rich and powerful and another, far harsher one, for everybody else. With this new development, "liberty and justice for all" is a complete farce.

  209. Judge Gorsuch is more than a Supreme Court Justice. He is an investment for the GOP in pro-corporate, anti-minority, and possibly anti-Roe v. Wade legislation. And he will be on the bench long after Mitch McConnell is gone. He guarantees right-wing policies for generations to come. That is why McConnell and his cronies have been willing to cheat with Garland, and wreck long-standing Senate procedures to get their way, and cement their odious, anti-social policies into a permanent conservative majority on the court.

    It may not be possible for Democrats to stop this juggernaut, but they must make a valiant try. Just rolling over and letting the Republicans ruin the nation and deprive Americans of their civil rights, and protection from oppression with this right-wing judge is not an ethical or moral option.

  210. Bravo!

  211. They will go to 51 whenever they need to ,.what difference does it make..this is a democratic protest. For my money they should have boycotted the whole procedure based on the Garland precedent set by McConnell

  212. In ancient Greece, an individual who acted independently of the established order was considered an idiot. In Elizabethan England, an individual who acted without the protection of a powerful patron was called a person. These were not compliments. Individuals who consider issues independently of their tribe are few and far between. From the founding fathers until the modern era, however, the elite constituted a tribe that aspired, or at least professed, to behave nobly. What has changed is that the elite now profess proudly to be utensils of their tribes, and not persons.

  213. @ Long Memory

    The elite??? You must be joking. "Brown shirts" would be a better label.

  214. Highly privileged, then.

  215. Republicans would be stupid to end the filibuster because they are the ones who are going to need it.

    The demographic trends are already set that will guarantee Democrat majorities in the future. Gerrymandering and voter suppression won't be enough to win elections in the future.

    If they kill the filibuster, they will lose most votes by simple majority in the future.

  216. Since Harry Reid has already killed the filibuster and if your prognosis proves correct then what difference would it make? Granted Supreme Court nominees were exempted but a future Senate controlled by Democrats would change that anyway if Republicans filibustered a Democratic candidate. The gordian knot has already been cut.

  217. Under Harry Reid's leadership Democrat Senators did end the filibuster, but only of Cabinet nominees, and pointedly not of Supreme Court nominees. Why? Because a single Supreme Court justice has much greater power to change government decisions that a Cabinet member.
    First, Cabinet members cannot change law, they can only administer the laws and recommend changes to Congress. We've just seen that. Tom Price has bitterly opposed Obamacare for years and became the Secretary of HHS determined to repeal Obamacare. He, Ryan and Trump tried but failed to change the law.

    Second, a 9th Supreme Court Justice who is as extremely conservative as Gorsuch would change many/most Court decisions, meaning change government laws. And, we've seen that happen to Obamacare after Roberts became the 9th Justice (Chief Justice). He is much less conservative than Gorsuch but, nontheless divided the baby in the Sebelius decision - leaving the mandate in effect but making Medicaid expansion optional.

    So, the real gordian knot has not been cut and both political parties would be wise to leave it in place. Killing the filibuster of a Supreme Court nominee would come back to haunt either party. It is part of our Checks and Balances that prevent the majority from running roughshod over the minority.

  218. Reid also eliminated it for all lower court judgeships: the lower courts also wield tremendous power, but Reid didn't have a problem with it then.

  219. Answer
    "Yes, the Republicans could possibly strip the filibuster away the next time, too. But surely having some slight chance of being able to deploy it to stop a renegade justice is better than having no chance at all."

    Question
    Give An example of a quisling.

  220. Change the Constitution so Supreme Court Justices [and all other judges] are elected.
    But you argue ordinary voters are too ignorant.
    Then you are arguing against small d democracy.
    Do you think ordinary voters would make worse choices than a Scalia who said it is not unconstitutional to execute an INNOCENT person who had a fair trial and who struck down the requirement that guns in the home not in use be either trigger locked or stored in safes.
    Justices do not decide cases based on the Constitution but on expediency. A Justice decides what decision he or she wants and then dredges up some rationale to support that decision.
    Explain Korematsu or Cohen.
    Black's argument in Korematsu.
    "We were at war" That is not an argument based on the Constitution but on expediency.
    Expediency is why many decisions are 5-4. The Justices are experienced lawyers. They know what the Constitution says.
    Since so many Court rulings are not based on the Constitution but on expediency and personal choice then the voters should ELECT Justices.
    Do you really think presidents of either party make Court appointments based on a candidate's scholarly ability. A president has a detailed discussion and appoints someone who will vote as the president wants.
    Gorsuch said repeatedly during the confirmation hearings he could not comment on specific cases.
    Do you think that when Donald askedGorsuch how Gorsuch would decide on a specific case that Gorsuch said he couldn't comment.

  221. Yep a gerrymandered vote would be fair NOT.

  222. Gerrymandering affects local Congressional districts.
    Electing Court Justices by the national popular vote would not be affected by gerrymandering.

  223. Not true gerrymandering affects all of our elections from the local districts to the national stage.

  224. "What matters is that Americans believe they are governed by law, not by whatever political party manages to stack the Supreme Court."
    It's too late to change that for that ship sailed when the GOP blocked Merritt Garland from consideration. Their claims that the "people have to speak" were disingenuous to say the least. The people spoke in elections in 2008 and 2012, but the statement was not what the GOP wanted. They ignored their constitutional responsibility; made a mockery of our system; and tarnished the Supreme Court.

    I do not think that the Dems should filibuster for it would be a useless exercise, i.e., it will not stop Mr. Gorsuch from being elected. Someone must act with integrity. Let's save the filibuster for future use, not stoop to the GOP level.

  225. This ship sailed long ago captained by Sen. Ted Kennedy and navigated by the National media that did not call Kennedy out.

  226. SCOTUS entered the political arena when the Marshall court, in Marbury vs Madison, claimed for itself the power to issue authoritative rulings on the meaning of provisions of the Constitution. In practice, the federal government's limited interventions in the economy and society throughout most of the 19th century provided few opportunities for the court to exercise its powers of judicial review, the infamous Dred Scott decision serving as a rare exception.

    The activist state of the 20th century, however, sucked SCOTUS into the middle of the debates over the proper role of the federal government. From the judiciary's initial resistance to the New Deal through the Warren court's attempt to redefine the impact of the Bill of Rights and the 14th amendment on government's responsibilities to its citizens, the Supreme Court intervened in issues that divided Americans. The resulting controversies may have penetrated the confirmation hearings for justices only after the nomination of Bork, but presidents had sporadically sought to shape the membership of SCOTUS since FDR's ill-starred court-packing scheme.

    A judiciary whose authority supersedes the powers of Congress and the state legislatures cannot remain above the fray. The GOP, more than the Democrats, have accelerated the process of politicization in irresponsible ways. But a judiciary with the power over the political branches enjoyed by SCOTUS cannot entirely escape the taint of political bias.

  227. Now.......or later. It makes no difference. Conceding an objectionable nominee to preserve "some slight chance of being able to deploy it to stop a renegade judge" IS "having no chance at all." If McConnel can persuade his faction to abandon this last remnant of a once reasonable and moderate assembly, it doesn't matter when they pull the trigger.

    And would all the journalists covering this issue please stop describing it as democrats "forcing" republicans to employ the nuclear option. Forcing implies coercion. The correct description is that republicans have been threatening to end this long tradition of civility, and have been holding every decision hostage to their threats.

  228. Mitch McConnell's rationale for refusing to consider the nomination of Merrick Garland was that the November election would be a referendum on who the nominee should be. He wanted to leave it up to the American people to decide. Well, they did, and the Republicans received 3,000,000 fewer votes than the Democrats. It was the Electoral College that elected Trump, not a plurality of the people.
    The American people spoke, and Mitch refuses to listen when the outcome doesn't match his political agenda. Outrageous and pathetically partisan. Mitch McConnell, have you no shame sir!

  229. George,

    Perhaps you forgot social studies, but in this country, the Electoral College is how elections are determined.

  230. Dear Concerned Reader,
    As a history major in college, I'm fully aware of the electoral college process. I'm merely echoing Mitch McConnell's own words. He specifically stated that the "American people" should weigh in on the nominee.