Signature Significance: The Democratic Party’s Irresponsible And Petulant Gorsuch Tantrum [Updated]

Signature significance, in the context of ethics, is when a single example of conduct or a single episode is sufficient to make a definitive judgment about the ethical values of an individual or an organization. It is something so striking and blatant that the usually valid statistical argument that one data point is meaningless doesn’t hold true. Ethics Alarms refers to signature significance frequently.

The Democratic Party’s behavior regarding the confirmation of Judge Gorsuch is signature significance. It won’t work. It will result in permanent harm to the Senate, harm that will initially most affect Democrats. It is hypocritical, irresponsible, and embarrassing, at least if the party is considering citizens who understand what is going on, admittedly a minority. It is unprofessional. It is dishonest. It is unpatriotic. The conduct is so obviously irresponsible that it is difficult to believe that Democratic leaders don’t realize it. Because it is all these things, the strategy is also very close to insane.

I just watched Senator Grassley’s address to the Judiciary Committee, ticking off l the reasons why the inflammatory Democratic rhetoric regarding Judge Gorsuch ranged from untrue to self-contradictory to ludicrous. He wasn’t exaggerating; it wasn’t a partisan speech.  Grassley reminded the committee that Gorsuch had been unanimously confirmed when he was nominated to the 10th Circuit. The Senator correctly explained why the recent mantra that Gorsuch wasn’t “mainstream” was counter-factual, since he has voted with the majority on that court over 90% of the time.

Grassley dismissed as offensive and judicially ignorant (my words, not his; Chuck was appropriately mild in his word choices) the argument that Gorsuch lacked compassion and wouldn’t rule “for the little guy.” Competent and ethical judges—unlike, say, Justice Sotomayor—don’t change their decisions according to which litigant is “big,” “little,” rich, poor, black or white. Their job, duty and role is to clarify what the law is. It is only part of the current progressive delusions, most recently shown in the rulings against the Trump travel halt from terrorist-teeming Muslim nations, that judges should base their analysis on their personal and political biases, when those biases are the “right” ones.

Senator Grassley then moved to the complaint that Gorsuch “refused to answer questions.” “What this means is that the judge wouldn’t say in advance how he would rule on cases that hadn’t come before him yet,” the Senator said. Of course he is exactly right. No judicial nominee has been willing to answer such question since the Democrats politicized the confirmation process forever by voting down Reagan appointee Robert Bork, despite the judge being as qualified and brilliant a jurist as anyone nominated to sit on the Court. No judge should have answered such questions before that, either. Cases are decided on the law and the facts. A justice who has made up his or her mind before even reading the briefs or hearing oral arguments is not judging fairly or competently.

Finally, Grassley pointed out that no Supreme Court nominee has ever faced a filibuster or the threat of one. For Gorsuch to be filibustered by Democrats, despite being assessed by almost every legal expert and commentator as unusually distinguished and qualified (including the left-leaning American Bar Association, which has found conservative judges less than qualified in the past because they were…conservative), is indefensible on the merits.

The Democratic rebuttal was as damning to Democrats as Grassley’s indictment. Senator Diane Feinstein (D-CA) immediately cited as the first and foremost justification for why her party was opposing Gorsuch the fact that the Republicans successfully blocked Merrick Garland, the moderately liberal, distinguished, qualified federal judge Barack Obama nominated to replace the late Justice Antonin Scalia in 2016. Senate Republicans refused to even allow his nomination to come to a vote. In other words, Democratic opposition to Gorsuch has nothing to do with Gorsuch or his qualifications. It is payback, tit for tat, and “Take that!” It is also worthy of enshrinement in the “Two Wrongs Don’t Make A Right Hall of Fame.”

Senate Majority Leader Mitch McConnell’s decision not give Garland a hearing was a hyperpartisan, desperate, unprecedented, Machiavellian and stupid ploy–stupid, because it seemed like it couldn’t possibly work (Donald Trump defeat Hillary Clinton? HAHAHAHAHA!) and because the new Democratic President was a good bet to appoint a far more extreme liberal justice. The tactic was not illegal or unconstitutional, however: just unethical. Democrats and their media allies have worked themselves into a frenzy by characterizing the episode as the GOP “stealing” a Supreme Court seat, using the rhetoric of crime. They have adopted this rhetoric even though they know that their ignorant deep blue supporters will take them literally.

Unlike McConnell’s Hail Mary trick, the threatened Democratic filibuster can not work, and the Democrats know it. Thanks to the former Democratic Senate Leader Harry Reid changing the Senate rules to prevent Republicans from filibustering Obama’s lower court judicial nominations ( a cynical and short-sighted move that will now allow Donald Trump to load the federal judiciary with over a hundred conservative judges unimpeded), a precedent was set. McConnell has made it clear that he has the votes to ban filibusters of Supreme Court nominations too, and will use them, if Democrats persist.

Yet the Democrats, unless they are bluffing, appear to be defiant. First, they are loudly opposing a good judge. Unethical. Second, they are lying to justify the opposition. Unethical. Third, they are emulating and escalating the conduct they accused Republicans of following for the past eight years. Hypocritical. Fourth, they are triggering a rule that will weaken the Senate, remove an important fail-safe device, and will initially most harm their own party. Incompetent and stupid. Fifth, they are employing the rationalizations  Tit for Tat and Sicilian Ethics, and sixth, their grandstanding is doomed to failure. REALLY stupid.

See:The March of Folly,” the Charge of the Light Brigade.

This is signature significance because no responsible, rational party behaves this way. Statesmen ( Stateswomen? Statespersons?) never behave this way.  Elected officials interested in governing don’t act this way. Trustworthy political parties don’t act this way.

Why are thy acting this way, then, other than the fact that the Democrats are currently irresponsible, unstatesmanlike, and untrustworthy?

The Democratic Party has made a  decision that its core supporters would rather have it throw a tantrum and embarrass itself than act like a responsible governing entity. The party leaders aren’t leading, but following, and following the most deplorable, anti-American, un-Democratic instincts of their angry base.

Signature significance.

Related: Another example is described here.

UPDATE 1: More details, history and perspective from the Washington Post, here.

UPDATE 2: If you can risk having your head explode, read Newsbusters’ account of CNN’s reporting on this issue. Nah, there’s no bias at CNN. And notice the acceptance of the rationale that Democrats should oppose Gorsuch because “they’re mad” and because their base wants them to.


20 thoughts on “Signature Significance: The Democratic Party’s Irresponsible And Petulant Gorsuch Tantrum [Updated]

  1. Not that it matters, but I completely agree with you on this.

    It annoys me (or worse) that the Dems have blown the chance to take the high ground on this one – to be the ones who hold off the nuclear precipice, who could live up to Michelle Obama’s “they go low we go high” exhortation. That they can’t seem to resist being sucked into the McConnell-like vortex speaks poorly for them, and they’ll richly deserve the bad desserts that will come to them once they opened the ‘nuclear’ genie. As will the GOP when it’s their turn in the barrel not too far down the road.

  2. Jack,

    It seems to me that we are on the very last step of leaving behind a system in which laws are made by the legislative, enforced by the executive, and clarified by the judiciary. What we are stepping into is a landscape in which the laws and culture are defined, defended, and promulgated from the judiciary, and which reflect whichever party can stack the benches with judges of their particular bias.

    Is it unethical for the Republicans to trigger a nuclear option and make it so that a Supreme Court nominee cannot be filibustered? I think it is, because every excuse I can conceive is a rationalization. If the Republicans don’t, then you can bet that the Democrats will once they are back in power in the Senate, and the Republicans are holding up a Supreme Court nomination. The Democrats already set the precedent; the Republicans are just following in step. Then there’s the Machiavellian impulse for the Republicans to seize as much power as they can in order to minimize the impact of the inevitable change of control of the Senate. There’s the worry that by not taking advantage of the situation, it might cede to the Democrats a victory that both sets a precedent (the Democrats will be emboldened to greater measures) and sets up the Democrats to further their agenda. Also, there’s the culture of the entire nation on the line… Every single one of these thoughts is an unethical rationalization. These rationalizations, I think, do exert an enormous amount of pressure, which is why I don’t see the Republicans taking the high road.

    Part of my question is: Is there any advantage to the Republicans not taking the nuclear option, if it comes to that, other than holding the moral high ground? I would certainly pray that anyone would prefer integrity over personal gain, power, influence, and so on, but I don’t see that actually happening. I especially don’t see that happening if keeping to integrity equates, in the minds of the politicians, to self-immolation.

    • “Is there any advantage to the Republicans not taking the nuclear option, if it comes to that, other than holding the moral high ground?”

      No, especially since they spectacularly abandoned any high ground by not giving Garland a vote. What they should and could have done was to announce that Garland was qualified, that Obama had every right to have his choice confirmed, and that they were re-setting the clock to pre-Bork, while making a statement that absent serious and objective problems with a nominee (Carswell, Fortas), a President’s judgment should be respected.

      And the GOP should have had its members confirm Garland unanimously.

      But the sociopathic Harry Reid fueled the almost as loathsome Mitch McConnell, and here we are.

      • No offense, but that sounds a bit closer to idealism than ethics. The GOP had the advantage and they had nothing to gain by giving it up, except maybe seeing an increase in messy primary fights by conservatives pronouncing those who voted for Garland “sellouts.”

        It reminds me of a pro wrestling match back in about 1984 when heel “Big John” Studd challenged then WWF champion ultra face Terry “Hulk” Hogan. Studd won the match on a count out, which is when a wrestler who is forced outside the ring can’t regain it by the count of ten, but, for those not versed in pro wrestling “rules,” championship titles don’t change hands on a count out or a disqualification, it has to be either a pin fall or a submission.

        Studd’s manager, uber heel Bobby “the Brain” Heenan (gads, I feel like such an idiot using these cartoonish names) took the microphone at the end of the evening, remarked on how wrong it was for someone to lose a match but retain his title under any circumstances, and dared the Hulk to sign a contract that provided for him to wrestle Studd again, this time with the stipulation that if he was counted out he would lose the title also. Of course Hogan signed the contract, not wanting to look like he was afraid to accept the challenge. Afterwards Heenan grabbed the mike and said “Hulk, I always knew you were dumb, but I never knew you were this dumb” before fleeing the ring.

        Despite the fact that this was wrestling kayfabe, designed to appeal to the maturity level of a 14yo, as all pro wrestling was (btw, Hogan went on to decisively pin Studd for the win in the rematch, ending the challenge and the angle, which was originally intended to be longer and intended for Jesse “the Body” Ventura, who had to drop out of the running due to blood clots in his lungs), it makes the point that you shouldn’t give in to a goading challenge or deliberately put yourself in a worse position just because the other side says something, because the other side will take full advantage and then just laugh at you for letting them play you.

        BTW, the Dems have just picked up their 41st vote, so get ready for a nuclear blast on Friday.

          • Unfortunately, an ethical party is not available, and arguably never has been. Both parties have been rather more ethical at various times throughout history, though.

          • I’m sure they could both hum a few other ditties. All silliness aside, and hoping you won’t take that as badly as Chris did when I called him on a typo (“that was a typo, you ass”), I think politicization of SCOTUS is a ship that’s already sailed and there’s no calling it back to port. This is just the end of the process that began with Fortas and continued with Bork. The two parties have two different, antithetical visions of the country, and a SCOTUS that is opposed can stymie those visions, just like it was, for a while, getting in the way of the New Deal. FDR simply got reelected until all the justices opposed to him died or retired, but future presidents don’t have that option. Their only hope is to try to put on those that match their party’s vision and hope they have years to live, and be a wet blanket to the other party’s initiatives. Their duty, as they see it, is to advance the right agenda, their agenda, which is best for the country in their view. I have no sympathy for the Democrats, who’ve put themselves in this situation. They can’t win, anymore than the Japanese could stop the US once its production machine got cranking, but they are going to make the other side go nuclear to win. They will have no one but themselves to blame when they lie in ashes afterward.

          • Isn’t it quite out of whack to call Justices like Scalia and Gorsuch “partisan”?

            Justices who refuse to legislate from the bench shouldn’t be considered partisan. I’m on the same page as you Jack, that the Republicans should have nominated Garland. It is sheer luck that they’re not considering who Hillary would have nominated.

            But I’ll also argue that from the 40,000 foot view, the Republicans are far more ethical than the Democrats. Most Republicans aren’t seeking judges that will implement conservative policies that can’t be achieved through the legislative process. The Democrats are doing just that. Just consider what’s going on with Trumps immigration pause; can someone name me a comparable Obama policy that was stopped by a federal judge? I don’t think there is an example of such a extreme judicial over-reach going the other way, one where Obama was in the legal right and the judge was wrong. I can come up with plenty of examples going the other way.

            • Yes. It’s been a smear especially since 2000, when SCOTUS stooped the recount after a rogue Florida Court decided not to follow Florida law. I think there is only one current SCOTUS justice who deserves that label, and it’s Justice Ginsberg, though if Justice Thomas hates Democrats, I wouldn’t blame him.

          • Of course, how does one measure this (I know how, but demonstrating it is much different). If only one party runs to the far end of political extremism and that party were to control the media, then it doesn’t matter who is nominated by whom, any nominee, even one appointed by a party that hasn’t flown to the extreme will *look* or be made to *look* like a politically appointee.

            Even more so if an appointee adheres to a constitutional framework that itself has been grossly removed from being the base standard and made to be a political point equal to other actual political points.

      • No, especially since they spectacularly abandoned any high ground by not giving Garland a vote. What they should and could have done was to announce that Garland was qualified, that Obama had every right to have his choice confirmed, and that they were re-setting the clock to pre-Bork, while making a statement that absent serious and objective problems with a nominee (Carswell, Fortas), a President’s judgment should be respected.

        The problem was, President Obama was part of the problem.

        As a senator from Illinois, Obama and 23 other senators attempted to stage a filibuster to block a confirmation vote on Alito, one of former President George W. Bush’s picks to serve on the bench. The filibuster bid failed and Alito was confirmed.

        Conservatives have seized on Obama’s filibuster vote to accuse him of hypocrisy for criticizing Republicans for saying the next president, and not Obama, should nominate Scalia’s successor.

        Of course, here was the excuse-making.

        He [Josh Earnest] argued that the Democrats’ 2006 filibuster of Alito was symbolic because he had the votes to be confirmed.

        President Obama was ethically estopped from complaining about the issue.

  3. Articulate and absolutely correct. 2 weeks ago a lot of people were swooning over Gorsuch, even on the left. Media was giving the fair shake and they were appreciative of his careful approach and consideration of cases. Nothing’s changed except the drum of filibuster has grown loud. That’s the only change and the only reason given, it seems, is “poor Merrick Garland”. Do they really want SCOTUS to operate on a panel of 8 or 7 or 6 for the next 4 years and beyond?

    I know we’re done with “This will help elect Donald Trump” so chalk this one up to “this will give the GOP a stronger congress in 2018”.

    Talk about shooting yourself in the foot.

  4. Though I am not a US citizen I am hopeful that my status does not disqualify me from commenting from a distance as these ethical issues are universal.

    Jack’s conclusion that this is instance of signature significance is one I agree with.

    It baffles me that the Democratic Party continually chooses an obstructionist course of action, which necessarily leads to unethical decisions time and time again. Virulent obstruction for the sake of it requires false bases and rationalizations and party politics: this is repugnant to many voters.

    While this may be a tit for tat response to a specific Republican effort to block the appointment of Garland, it is also a tit for tat strategy that is akin to (at least a portion of) the Republican Party’s efforts attempts to thwart all of the previous administration’s agenda. These strategies seems to play to respective party bases but also drive away those moderates who can’t stand the waste and inefficiency and the message that such acts of signature significance tell about the perpetrators.

    Why don’t the Dems pick and choose their battles right now? Take the “high road”, which is really just the middle road in the present SCOTUS confirmation, and save themselves for a real issue. Crying wolf on everything, especially when it is underpinned by unethical rationalizations, is going to further alienate moderates or have them tune out such that when real issues need support the Democrats will be ignored.

  5. Strategically, this move is stupid, besides being unethical. The Democrats have no defensible argument for the filibuster in Gorsuch’s case, and forcing the Republican’s hand will not only defeat them now, but in the future when they do have a defensible argument — namely “partisan balance.”

    For decades, the court has been split 4-4 conservative/liberal with an libertarian as the swing vote. When Sandra Day O’Connor was on the court, you could argue it was closer to 4.5-4.5. Even though this has no basis in reality as a requirement, or even as necessarily desirable, it has quite a bit of public support to have both positions represented nearly equally.

    America would probably be much more responsive to a “partisan balance” argument if Trump were to replace a liberal with a conservative. America has proven its preference for divided government many times over, and this would be no less true of the Supreme Court. So confirming Gorsuch and potentially fighting to the death on a more emotionally defensible hill next time would make a lot more sense.

    It seems that their base has persuaded them to die on this hill in spite of the strategic disadvantages. It’s immeasurably better for the Republicans that the judicial filibuster be removed now, because there will be no need to deal with the “partisan balance” argument whatsoever. The Democrats, in this case, are actually working for them — the Republican moderates like Collins and McCain might balk later, but they’re likely to fall in line now.

    Dumb. Futile. Helpful to the right. All the things the Democrats say they’re not.

  6. Then there’s this slimy piece from the Washington Post:

    But let’s hear it for a law school classmate of mine (probably the nicest, quietest, most friendly person in the class, by a long shot), Joe Donnelly (from Reuters):

    ‘Democratic U.S. Senator Joe Donnelly threw his support on Sunday behind Judge Neil Gorsuch, becoming only the third Democrat to back President Donald Trump’s nominee to fill a vacancy on the Supreme Court.

    “After meeting with Judge Gorsuch, conducting a thorough review of his record, and closely following his hearing before the Senate Judiciary Committee, I believe that he is a qualified jurist who will base his decisions on his understanding of the law and is well-respected among his peers,” Donnelly said in a statement.

    He also said he supported keeping the current 60-vote threshold for high court nominees.’

    Good decision, Joe, and a very nicely worded statement. I’m sure you’ll be slimed and accused of betraying your constituents because Indiana went for Trump. Who knows, you may even get ‘primaried out’ by an Elizabeth Warren or Bernie Sanders or George Soros backed whacko.

    Personally, I think the country is so divided, we might as well bid the Senate filibuster rule adieu.

    • To clarify, Joe will be declared a traitor by the Indiana Democratic Party for allegedly trying to placate the Hoosiers who voted for Trump.

    • That there “current 60-vote threshold for high court nominees.’” is another annoying lie that we are now hearing about Supreme Court nominees. After all, both Thomas and Alito were confirmed with fewer than 60 votes, so there is NO 60-vote threshold.

  7. Republicans and Democrats belong to the same class, if not party. That class is The Establishment. They are the new aristocracy, and only have to pay attention to the peasants when they threaten to toss the elite out of power. There are those in Congress who are not part of ‘the club;’ the freedom caucus is an example. (Note how they are treated by the Establishment on both sides)

    The Republican Establishment have figured out that THEY are in danger of losing their jobs and power if they do not react to their voting base in a non election year. In years past, they simply mouthed the words and made promises that they did not keep when returned to office.

    They asked for a majority in the House. When they got it, their excuse was they needed a majority in the Senate. When they got that, they whined about needing the White House to enact their promises, something they never thought would happen (and actively worked against happening, as it meant their jobs were safe with Hillary as POTUS.)

    Now they have ALL the power, and are not ready to use it. Witness all of the grandstanding with votes against Obamacare in past years, but no real plan was ever developed because they never intended to replace it. Then, in typical Establishment fashion, they excluded their own party members and crafted a bill that was not the promise, and even acted like the Democrats did when they rammed Obamacare through years ago (“we have to pass it to see what is in it!”)

    ‘Ryancare’ was not true to the principles promised during the election. It showed some minor lip service to those promises, while not lowering costs nor significantly limiting government power over health care. The three phases included a ‘trust me, phase two allows us to use the Executive branch to gut Obamacare.’ We no longer trust the Establishment of either party. Their track record shows that they have served themselves, not the American people. Using this approach means that a progressive can later reenact whatever Trump cuts out, thus restoring power to the elite Establishment.

    The Establishment likes the status quo. They have nice jobs, great perks (they get rich- or richer- while in Congress) and public attention. Actually giving up government power over the population is not their idea of how to run the country. A great example of this is the fact that Congress does not live under many of the rules they make for the peasants, including Obamacare. They have health care paid for by the peasants, using doctors, procedures, and facilities out of reach of most people. They write the rules to enrich themselves and their cronies, using some of the same tactics they outlawed for the general population (insider trading, for instance.)

    The only way to drain the swamp is term limits, with something like it for the federal bureaucracy, lest they then become the power behind the throne when Congress cannot accumulate that power over time. Make it such that Congress cannot write exceptions into the law for themselves and their cronies. Demand that prosecution of the elite follow how the peasants are prosecuted (Hillary, for example, has not been prosecuted for crimes other, less exalted lawbreakers went to prison for.)

    AND PAY ATTENTION to politics. Apathy allowed this situation to evolve, and the time has come to engage in the process again, as our forefathers did, to preserve the American experiment.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.