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Vail Daily column: GOP to filibustering Dems: Make my day

As someone privileged to practice before both the Supreme Court for which Judge Neil Gorsuch has been nominated, and the 10th Circuit Court of Appeals where he currently sits, I’ve watched keenly the process of his confirmation.

This is framed by some history. Before 1987, the Senate routinely confirmed whomever the president nominated, absent obvious character or competency flaws. But then, President Reagan nominated Robert Bork.

Bork had been an acclaimed antitrust scholar and professor at Yale Law School. He had been the Solicitor General where he handled dozens of Supreme Court cases. He had also served as an acting Attorney General.

Chief Justice Warren Burger dubbed Bork “the most effective counsel to appear before the court” during Burger’s 17-year tenure.

Bork had been unanimously approved by the Senate for a judgeship on an appellate court. He had served there for the five years prior to his Supreme Court nomination. He was a pre-eminent jurist.

Within hours after Bork’s nomination, a politician who wanted to be president was on the Senate floor to deliver a bombastic and defamatory attack on him. The speech included this:

“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens …”

The politician and presidential hopeful who delivered that speech was Ted Kennedy. It was the second-ugliest thing Kennedy ever did.

That was only the beginning. The Democrats pulled out all the stops; they even published a list of the movies Bork rented from the local video rental store (they were all boring).

Historians agree that Kennedy’s speech and the Dems’ follow-up tactics were defamatory and scurrilous. But it worked. Bork’s nomination failed.

Judge Bork died a few years ago. To this day, “Bork” is a colloquial verb. Google says it means “to obstruct someone, especially a candidate for public office, through systematic defamation or vilification.”

Later Supreme Court nominees were usually approved overwhelmingly by both parties. (A notable exception was the second black justice in history, Clarence Thomas, whom the Dems nearly succeeded in blocking.)

But something odd happened along the way, which was little-noticed at the time but proved very important.

In the last year of George Bush Sr.’s presidency, the Democratic Chairman of the Senate Judicial Committee announced that if a Supreme Court vacancy were to occur, the Dem-controlled Senate would refuse to consider Bush’s replacement nominee on the grounds that the replacement should be chosen by the next president, whom the chairman anticipated, correctly, would be a Democrat.

That chairman was one Joseph Biden, who went on to become vice president for that next president, President Barack Obama. No vacancy occurred in the last year of Bush’s presidency, but one did occur in the last year of Obama’s presidency. And by then, the GOP controlled the Senate.

Biden’s words came back to haunt the Dems. The GOP followed the “Biden Rule” by refusing to consider Obama’s nominee for replacement.

That brings us to President Trump’s nominee, Judge Gorsuch. He’s been endorsed by Obama’s own Solicitor General and numerous other prominent Dem lawyers and judges, and by everyone on the GOP side. In his confirmation hearing, he was obviously the smartest and most charming person in the room. He lives in Boulder, and likes to fish and ski. Whichever side you’re on, you can imagine him as a friend.

So the Dems are in a quandary. Their angry base demands they filibuster Gorsuch — that they block a vote on him unless 60 senators vote in favor of voting. Because the GOP has only 52 senators, that 60 would have to include eight Dems.

Although Supreme Court nominations were usually less contested after Bork, the filibuster was used by both parties for years to block lower court nominees. A partner and friend of mine, an esteemed lawyer named Miguel Estrada, was filibustered by the Dems seven times.

Eventually, however, a Dem Senate abolished the filibuster for lower court nominees. That gave Obama carte blanche to fill judicial positions so long as the Dems held the Senate.

But as with the Biden Rule, the Dems’ strategy in abolishing the filibuster for lower court nominees proved ill-timed. It was just before the GOP took over the Senate and then the Presidency. And so now, the Dems have no ability to block Trump’s lower court nominations.

But the filibuster is still in place for Supreme Court nominations, and the Dems could use it to block a vote on Gorsuch.

Here’s where it gets interesting. The filibuster requires 60 votes to force a vote, but the filibuster itself can be abolished with only 51 votes. So the GOP can abolish the filibuster for Supreme Court nominees without any votes from the Dems.

What will the Dems do? Will they play to their base by filibustering, and thereby egg the GOP into abolishing the filibuster for Supreme Court nominees just as they themselves abolished it for lower court nominees? If so, then the Dems forfeit whatever leverage they may still have on future Supreme Court appointments by Trump — and there will probably be at least two.

If I were the GOP leadership, then I know what I would be telling the Dems: Make my day.

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