A moral vic­tory, but a strate­gic de­feat

By forc­ing the ‘nu­clear op­tion,’ Se­nate Democrats opened the door to a con­ser­va­tive Supreme Court

The Washington Times Daily - - OPINION - By J.T. Young J.T. Young served in the Trea­sury Depart­ment and the Of­fice of Man­age­ment and Bud­get, and as a con­gres­sional staff mem­ber.

With Neil Gor­such’s nom­i­na­tion for the Supreme Court, lib­er­als ac­cepted moral vic­tory in ex­change for strate­gic de­feat. They forced a fight they could not win and thereby sur­ren­dered a bet­ter chance of vic­tory later. In con­trast to lim­ited re­wards from moral vic­to­ries, lib­er­als will dis­cover that re­turns on strate­gic de­feats are any­thing but lim­ited.

Last Fri­day by a vote of 54-45, the Se­nate con­firmed Judge Gor­such to be an as­so­ciate jus­tice of the high court. Lib­er­als who forced this fight can take some small com­fort from their ef­forts. They turned a nom­i­nee with con­sen­sus sup­port (a Quin­nip­iac poll re­leased the week of the vote showed Amer­i­cans fa­vored his con­fir­ma­tion by 15 per­cent; other polls showed sim­i­lar re­sults) into a highly par­ti­san fight. The fight was long — more than two months — in­creas­ingly bit­ter, and in the end, Judge Gor­such re­ceived bare bi­par­ti­san sup­port.

For lib­er­als, these small tro­phies are a po­lit­i­cal poul­tice for a se­ries of de­feats. The left see Obama’s pres­i­dency as hav­ing been un­der­cut by con­ser­va­tives — his prom­ise largely un­ful­filled. They lost the House to the Tea Party in 2010 and the Se­nate in 2014. In 2016, they lost twice: first, when Hil­lary Clin­ton beat Bernie San­ders; sec­ond, when Don­ald Trump beat Mrs. Clin­ton.

For those on the left, Pres­i­dent Trump per­son­i­fies eight years of mount­ing frus­tra­tion. Con­sumed by their per­cep­tion of the right’s lack of le­git­i­macy in gen­eral, and Mr. Trump’s in par­tic­u­lar, they reached the con­clu­sion they had noth­ing left to lose. Such a mind­set made all-out op­po­si­tion ap­pear cost-free and cathar­tic.

Ac­tu­ally, lib­er­als did have more to lose — and may well have just lost it. Their mis­cal­cu­la­tion was se­ri­ous and fun­da­men­tal. In­stead of fac­ing a bat­tle they had to fight, they faced one they could not win.

Judge Gor­such was the per­fect Supreme Court pick for Mr. Trump, con­ser­va­tives and Repub­li­cans. For one thing, he united all three — some­thing nu­mer­ous other is­sues have shown to be dif­fi­cult. The coun­try also ap­proved. And had they been free agents, more Democrats would have also ap­proved.

How­ever Democrats were not free agents. Lib­er­als pushed them into the wrong fight over the wrong man at the wrong time. Un­doubt­edly, Repub­li­can lead­ers were sur­prised that they got this win. Look­ing at the fac­tors stacked against them, they likely as­sumed Democrats would per­func­to­rily fil­i­buster the nom­i­na­tion then, after a sym­bolic stand, con­cede a vote on Judge Gor­such.

Some vul­ner­a­ble Democrats would sup­port the nom­i­na­tion, Judge Gor­such would be con­firmed, the court would re­turn to its ear­lier 5-4 con­ser­va­tive ma­jor­ity, the “nu­clear op­tion” would re­main un­trig­gered, and the need for 60 votes to break a fil­i­buster would re­main in­tact. Ar­maged­don would still loom for a later pick who threat­ened to ex­tend the Supreme Court’s con­ser­va­tive edge into con­ser­va­tive dom­i­nance.

In­stead, Mr. Trump, con­ser­va­tives and Repub­li­cans re­ceived a far big­ger win than they had any right to ex­pect. And it was a win they des­per­ately needed. In the midst of Mr. Trump’s un­even start and the af­ter­math of an in­abil­ity to pass a re­place­ment of Oba­macare, they needed to look able to make “some­thing big” go right. Thanks to lib­er­als’ ob­sti­nacy, thos on the right got more than they bar­gained for — and more than they could have achieved on their own.

To un­der­stand how much Mr. Trump, con­ser­va­tives and Repub­li­cans gained, look at how much lib­er­als lost. Cer­tainly, they lost on the nom­i­nee. How­ever, that was the least of it — they were go­ing to lose here any­way. They also lost cred­i­bil­ity with the coun­try, who largely did not agree with them here. More im­por­tantly, they lost cru­cial lever­age to block any fu­ture Trump Supreme Court nom­i­na­tion.

While the Gor­such con­fir­ma­tion sim­ply re­turns the Supreme Court to its ear­lier 5-4 con­ser­va­tive split, another nom­i­na­tion could push the court to a 6-3 con­ser­va­tive ad­van­tage. The bar for such a change would likely have been much higher — both for the nom­i­nee and even more for trig­ger­ing the nu­clear op­tion.

How­ever, that is a bridge the Trump White House and Se­nate Repub­li­can lead­er­ship no longer have to cross. Thanks to lib­er­als’ in­sis­tence that an all-out fight be waged over Judge Gor­such, it will not have to waged later — de­spite that a later nom­i­nee could be more con­ser­va­tive and more sig­nif­i­cant for the court’s split.

Judge Gor­such was not only the per­fect nom­i­nee, he was the per­fect nom­i­nee to trig­ger the nu­clear op­tion. Now trig­gered, the nu­clear op­tion stands, mean­ing it won’t be an is­sue with the next court nom­i­na­tion. Con­se­quently, the Trump White House can make a fu­ture nom­i­nee that much more con­ser­va­tive. Cer­tainly, con­ser­va­tives will use this ad­van­tage to press for just such a nom­i­nee.

Spoil­ing for a fight, lib­er­als spoiled their chances of win­ning a much more im­por­tant fight later — one that they had a far bet­ter chance of win­ning. An un­nec­es­sary strate­gic de­feat, it was an un­ac­cept­ably high price to pay for a moral vic­tory.

Mr. Trump, con­ser­va­tives and Repub­li­cans re­ceived a far big­ger win than they had any right to ex­pect. And it was a win they des­per­ately needed.

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