On Tuesday, two days before the scheduled confirmation vote on Neil Gorsuch for the Supreme Court, Sen. Chris Coons, D-Del., went on CNN to bemoan the impending death of Senate comity and procedure.
“If we look down the road, the further erosion of the system here in the Senate that has kept us different from the House, the erosion of the protections for minority political rights of the filibuster would be, I think, a very grave step,” he said. He added a few minutes later: “If they choose to break the rules to change the rules, that will be on them.”
It’s a fine sentiment, but Coons got his tenses mixed up. He should have said “was” rather than “would be,” since the events in question occurred in November 2013. As for “looking down the road,” that’s precisely what he and his fellow Senate Democrats failed to do back then.
Former Sen. Carl Levin warned his fellow Democrats from the floor about the consequences of the precedent they were setting when they invoked the “nuclear option.” They ignored his warnings. For the momentary benefit of pushing through a few extra nominations — a benefit that only lasted until voters took away their Senate majority a year later — they changed Senate rules with a simple majority vote instead of the two-thirds majority required by the rules.
From that moment on, as Levin noted nearly three and a half years ago, Senate rules became whatever the current majority leader thinks he can get 51 senators to agree on.
Coons was not an innocent bystander when that happened, either. He was one of the 52 senators who voted to do it. He and many of his colleagues suddenly rediscovered the opposing argument just when their party was about to be on the receiving end of the precedent they had set. And not only did they set the precedent, but they actually promised to expand it a few months ago, when they expected to win the November election and then face difficulty afterward in confirming President Hillary Clinton’s Supreme Court nominations.
Coons echoed the language of Minority Leader Chuck Schumer, D-N.Y., when he demanded a process for negotiating “a consensus [nominee] who can win confirmation by both parties.” But this glosses over the Democrats’ lack of serious substantive objections to Gorsuch, beyond just their ideological distaste for him. Gorsuch is precisely the sort of justice you would expect a Republican president to appoint — just perhaps more perfect than usual with respect to his complete lack of personal baggage.
For all of the Democrats’ emotional rhetoric based on tendentious readings of his court opinions (his use of the word “merely” in one unanimous panel ruling dominated the committee markup), they basically came up empty during the confirmation process. Think about that: Gorsuch has a lengthy and easily available paper trail after years of executive and judicial branch service, and they had more than a full month to prepare. They came up with squat.
The one intellectually respectable argument for blocking Gorsuch — that any means are justified because of what Republicans did to Merrick Garland — was apparently sidelined by the fact that most voters think Garland is a town in Texas where a terrorist attack was thwarted.
So in the light of the feeble effort he and his party put forward during the confirmation process, Coons should probably count his blessings instead of complaining. Perhaps he is already doing so in secret. Because he voted to let 51 senators make new Senate rules, all the pressure has been taken off the minority party. Democratic senators can now go in front of the small sliver of angry Democratic voters that wears the pants in their party, shrug, and say accurately that they did everything they could.
