After President Barack Obama nominated Merrick Garland for the Supreme Court on March 16, the Republicans stonewalled and refused to even schedule confirmation hearings. They argued that the American people should weigh in on this decision - even though the presidential election was still almost eight months away.
In effect, they were creating a new - and perilous - precedent that lame-duck presidents could not fill Supreme Court appointments during their final year of office. This is quite a stretch. Justice Antonin Scalia died Feb. 13, 2016, and only one other Supreme Court vacancy has gone longer in the last 150 years.
Now that President Trump has nominated Neil Gorsuch as Scalia's replacement, the temptation for Democrats to retaliate and give Republicans a dose of their own medicine is very high. The filibuster is a formidable tool that can be wielded by the minority party. Furthermore, it would send a message that actions - or inaction in the case of Garland - have consequences. In effect, Republicans would sow what they reaped.
However, this would be the wrong move. Instead, after a due diligence hearing, Democrats should allow Gorsuch to be confirmed to the court. In other words, a tit-for-tat strategy is not appropriate in this case.
First, a precedent does not really become a precedent until it is followed up a second time. If Democrats "go high," the Republicans' behavior in Obama's last year of office becomes an embarrassing, but notable, exception to the rule.
Second, Gorsuch is one of the few nominations by Trump that is undisputedly qualified for the job. Gorsuch is a Harvard Law graduate and has a doctorate from Oxford University. He clerked for two Supreme Court justices and has served on the U.S. Court of Appeals. He faced no opposition during his confirmation for that post, and the American Bar Association had rated him as "unanimously well qualified."
His originalist and strict constructivist judicial philosophy is what is most controversial. The fact that Gorsuch is replacing Scalia (rather than a Ruth Bader Ginsburg or Stephen G. Breyer), and has been described as a "carbon copy" of him, should make the pill less bitter to swallow. Although liberals detested Scalia's views, he was respected for his jurisprudence and his colorful opinions. His friendship with Ginsburg demonstrated that fundamental political disagreements do not have to be taken personally.
Third, Democrats ought to be careful about not making the same mistakes they did during the election. One of the reasons that Trump is in office today is that Democrats lost touch with their working-class base. In many cases, they were insensitive to the concerns of voters who were drawn toward the Trump campaign and his populist and candid message. The electorate understood that a Supreme Court seat - and likely more - was at stake in the presidential election. Technically, the Republicans have an electoral mandate (albeit weak and controversial) and they preserved their majority in the Senate. They won the prize and are entitled to replace a Scalia with a Scalia.
Democratic senators should participate in the Senate Judiciary hearings and provide the proper scrutiny that is deserving of a Supreme Court nominee, and Democrats should exercise their right to speak out against his confirmation. But vigorously finding ways to stall or incessantly complaining about a qualified nominee will undermine their credibility when it comes to opposing other, less qualified political appointments.
Several of Trump's decisions in his first weeks in office are reenergizing and emboldening a still stunned Democratic base. An "indivisible" political movement of progressives is spreading throughout the country. But for the opposition to be taken seriously, blanket condemnations of every Trump action and decision will merely appear to be sour grapes to the rest of the country. It will play right into the hands of Trump strategists who maintain that Democrats are being obstructionist for the sake of being obstructionist. There is no value in making a mockery of our political system in this way.
Battles must be chosen wisely, and an exhaustive and bitter battle over Gorsuch's nomination should not be fought. Alas, it appears that there will be no shortage of battles to choose from under the Trump administration.