On the Supreme Court, Democrats simply lost

Published 1:03 pm Saturday, February 4, 2017

by Dick Polman

When Senate Republicans decided last year to ditch their constitutional duty — by stiffing President Obama’s eminently qualified Supreme Court nominee, denying him even the courtesy of a hearing — they took a big political risk. They gambled that the voters wouldn’t punish them on election day.

Turns out, they were right. Their unprecedented power play paid off.

And that’s why the minority Democrats are currently up the creek. They can fume all they want about how the GOP stole Merrick Garland’s seat — justifiably so — but their options for blocking Trump nominee Neil Gorsuch are basically nonexistent. Senate rules require 60 votes for passage, which means that Mitch McConnell needs eight Democrats to say yes. But if Democrats dig in, McConnell can always change the Senate rules and put Gorsuch on the court with a simple majority vote — 51 Republicans saying yes, no Democrats needed.

How come Senate Democrats have so little leverage about the future of the high court? Because elections have consequences, and the 2016 election is Exhibit A.

Last year, Democrats calculated (or hoped, or assumed) that voters would be outraged about the GOP’s work stop-page on the Garland nomination. McConnell and his allies insisted that Garland was DOA simply because Obama was a lame duck in his final year, that presidents don’t get to put anyone on the court in their final year. The Repub-licans lied, of course, because lame duck Ronald Reagan got to put Anthony Kennedy on the court, with bipartisan support, in his final year.

Democrats figured that the 2016 electorate would rail at the injustice of the GOP stance on Garland, and that Democratic-leaning voters, in particular, would cast ballots en masse with the court’s future direction in mind.

That didn’t happen.

According to the national exit polls, 21 percent of all voters cited the Supreme Court as the “most important” factor in their voting decision. In that cohort, Trump swamped Clinton by 15 points. Overall, 70 percent cited the Su-preme Court as an “important” factor, and Trump beat Clinton there too.

Those stats jibe with what we learned on the ground last year. Social and religious conservatives, who fixate on the Supreme Court far more than their liberal counterparts, opted to ignore Trump’s serial lying and moral failings, because he was their best hope for a post-Scalia conservative bench. Evangelical Christians, in particular, recognized that Trump was a detestable human being, but Mike Pence worked hard, and successfully, to hose them down and stoke them up.

Even the Republican establishment folks who personally loathed Trump got in line on the court issue. John Boehner, the ex-House speaker, said last fall that Trump’s behavior “disgusted” him. Nevertheless, “The only thing that really matters over the next four years or eight years is who is going to appoint the next Supreme Court nomi-nees … The biggest impact any president can have on American society and on the American economy is who’s on that court.”

So while the average Democratic-leaning voter dozed off about Merrick Garland’s hostage status, the average conservative voter got assurances that Trump would deliver on tilting the court. Promise made, promise kept.

McConnell, in his role as Trump enabler, says that Trump’s nominee should be “confirmed based upon the com-pletely outstanding credentials that we’re going to see,” which is galling, of course, because Gorsuch will occupy the seat that was meant for Garland, whose completely outstanding credentials, as a lower-court judge, had long been vetted and supported by Republicans.

But there’s no point in lashing the Republicans for their success. They got their voters stoked about the court, Democrats did not. If party leaders had driven home the “stolen seat” message; if the Democratic-leaning citizens who stupidly stayed home, or wasted their votes on Jill Stein and Gary Johnson, had instead paid sufficient attention to the Garland farce; if they had made peace with Clinton’s imperfections and sensibly viewed her as the best vehicle for tilting the high court leftward, then the odds are high that Trump would never be where he is.

And Senate Democrats would not be reduced to firing blanks.

DICK POLMAN is the national political columnist at NewsWorks/WHYY in Philadelphia (newsworks.org/polman)