What the Democrats in the Senate should do about Judge Gorsuch is truly a dilemma. The failure to hold hearings on President Obama’s appointee Merrick Garland was unprecedented, even by a party – the Republicans here – in control of the Senate. Essentially, the Republicans stole a Supreme Court appointment belonging to a Democrat President, in whom our Constitution vests the right to make the appointment.
But the majority of the Senate ignored the Constitution, usurping the power of the President for itself. This was not clever political maneuvering. It was a brazen affront to the process laid down by our Founding Fathers and, until now, respected. We have three branches of government, each with a prescribed function. Failing to hold hearings on whether Judge Merrick was a qualified jurist – something which the same majority had previously determined he was – was, on the one hand, the act of a Senate failing to perform one of its prescribed functions and, on the other, stealing a prescribed function belonging to another branch of government – the Office of the President.
So here is the dilemma. Forget the “nuclear option.” Let’s look at the situation at its core. If you believe in our Constitution, the Democrats should give it the respect the Republicans in the Senate didn’t. They shouldn’t filibuster; they should attend hearings for Judge Gorsuch, ask intelligent questions, and give their advice and consent if they deem him qualified. Until Merrick Garland, that’s how it had been done; that is what our Founding Fathers envisioned.
Yet if the Democrats respect our Constitution and do what’s right, that will mean the Republicans really did successfully steal a Supreme Court appointment. That cannot be tolerated any more than a president who violates the emoluments clause or commits treason by openly trying to delegitimize and destroy our institutions and world and moral commitments while shamelessly lying every time he moves his lips. We are really in a tough bind. If Democrats properly exercise their constitutionally prescribed function, they will legitimize the hijacking of President Obama’s authority to have appointed the next Supreme Court Justice, something which should never be legitimized and should be condemned by patriots believing in our form of government. But if the Democrats take steps to “get even” or punish the Republicans by preventing Trump from making an appointment to a vacant seat – regardless of how long it has been vacant – well, the Constitution is undermined once again.
The problem we are seeing in this upside down world right now has to do with something our Founding Fathers didn’t provide for – what to do when those in power abuse it in the manner they have. The Republican Senators failed to do their duty to hold hearings on and approve the appointment of Merrick Garland, but there was no recourse. They just did it. Trump is manifestly unfit for office and no one is doing anything about it and, again, there is no recourse. We can’t, without violating constitutional principles ourselves, force the issue.
We are clearly in unchartered waters, and I see two potential outcomes. One is something that amounts to civil war. The other – and this is what I hope – is that the Republicans who have hijacked the Constitution impose virtually everything they want – take away health care, cut Medicaid, strip Medicare and Social Security, poison our air and water, and end programs like Meals on Wheels. Then maybe, finally, the people who put them into power will vote them out, seeing that they are nothing but selfish, mean, and self-aggrandizing folks feeding at the government trough at the expense of what is good for the country as a whole. Both are tough medicine. I just don’t know what other alternatives there are.