Donald Trump has launched a hard, deep serve into the court of the Democrats with the nomination of Neil Gorsuch to the Supreme Court. Now it is up to Chuck Schumer to determine how he and his fellow Democrats want to play the return.
But like anyone receiving a power serve, they start entirely on the defensive.
The truth is that the Democrats cannot win this fight. Short of some long shot bombshell about the nominee, this is a guaranteed loss. And so there is a fundamental decision for Schumer to make – not about whether his Democrats can win, but how they choose to lose
There simply are no strategies available to the Democrats that will succeed in the end. Sure, they will be full of sound and fury. They will employ every available parliamentary tactic. They will engage in obstruction and character assassination. But they will lose, because Republicans control 52 votes in the Senate, and are emboldened enough by their unexpected electoral sweep to seriously contemplate changing the rules, if necessary, to all but guarantee a victory.
Sure, the Minority Leader could play the Merrick Garland card, complaining loudly and repeatedly that Obama’s nominee during the last year of his administration was not even granted a hearing, but that will be a tough sell given that the Republicans’ tactic was based on the same strategy articulated by the recently departed Democrat Vice President. That’s why it’s called the Biden Rule.
The major political complication for the Democrats is that ten of their Senators up for reelection in 2018 are from states that strongly supported President Trump. These politicians will be hesitant to walk the plank in a fatally flawed effort to kneecap this nominee.
So, will the Senate Minority Leader go all in to try and take down a man being widely hailed as not just a fit successor to Antonin Scalia, but the closest thing to a duplicate of the recently deceased Associate Justice? Will he be able to justify his newfound opposition to a man that he and every other Senator unanimously confirmed for his current position on the U.S. Court of Appeals? Will he force Mitch McConnell to employ the 51-instead-of 60 vote “nuclear option”?
Or, does Schumer all but concede this one to a new President and his slam-dunk nominee and live to fight another day? After all, given the unpredictable nature of John Roberts (still a pariah in many circles for saving Obamacare) and Anthony Kennedy, it is the appointment to the next vacancy that will truly swing the balance of the court to the originalist side. Schumer must decide which fight – this one or the next one – is more worth the expenditure of his very limited political capital. Who knows what the political environment might be when the next vacancy on the court springs up?
This is certainly not to suggest Schumer will roll over and say a single kind word about Judge Gorsuch. Heavens no. if only to satisfy the bloodthirsty special interests on the left raising millions to fight this nomination, Schumer will be required to demonize Gorsuch, starting with the usual leftist bromides such as “out of the mainstream,” his “troubling record on (pick the topic),” and his “protection of powerful corporate interests.”
But in the end, how Schumer chooses to lose will reveal much about whether the Democrats have actually learned anything from their stinging rebuke by the voters in November.